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SUPERSTITION AND FORCE, 



ESSAYS ON 



THE WAGER OF LAW— THE WAGER OF BATTLE- 
THE ORDEAL— TORTURE. 



BY 



HENRY C. LEA 



Plurima est et in omni jure civili, et in pontificum libris, et in 
XII. tabulis, antiquitatis effigies. — Cicero, de Oratore I. ^j. 



THIRD EDITION, RE VISED. 






PHILADELPHIA: 

HENRY C. LEA. 
1878. 






Entered according to Act of Congress, in the year 1878, by 

HENRY C. LEA, 

in the Office of the Librarian of Congress. All rights reserved. 



COLLINS, PRINTER 



PREFACE. 



The history of jurisprudence is the history of civiliza- 
tion. The labors of the lawgiver embody not only the 
manners and customs of his time, but also its innermost 
thoughts and beliefs, laid bare for our examination with a 
frankness that admits of no concealment. These afford 
the surest outlines for a trustworthy picture of the past, 
of which the details are supplied by the records of the 
chronicler. 

It is from these sources that I have attempted, in the 
present work, a brief investigation into the group of laws 
and customs through which our forefathers sought to dis- 
cover hidden truth when disputed between man and man. 
Not only do these throw light upon the progress of 
human development from primitive savagism to civilized 
enlightenment, but they reveal to us some of the strangest 
mysteries of the human mind. 

In this edition I have endeavored to indicate, mofe 
clearly than before, the source, in prehistoric antiquity, of 



IV PREFACE. 

some of the superstitions which are only even now slowly 
dying out among us, and which ever and anon reassert 
themselves under the thin varnish of our modern ra- 
tionalism. 

In a greatly condensed form the first three essays 
originally appeared in the North American Review. 

Philadelphia, June, 1878. 



CONTENTS. 



I. 

THE WAGER OF LAW. 

PAGE 

Social Organization of the Aryan Races. 

Crime merely an offence against individuals . . . • ^3 

Tribal organization — Responsibility of kindred ... 14 

Compensation for injuries — The Wer-gild . . . .16 

The Oath and its Accessories. 

Perplexities as to evidence ....... 20 

Guarantees required for the oath . . . . . .21 

CONJURATORS, OR PARTAKERS IN THE OaTH. 

The Wager of Law a prehistoric Aryan custom . . .31 

It is adopted by the Church ....... 33 

Selection of Compurgators. 

They are originally the kindred ...... 35 

Strangers admitted ........ 37 

Numbers required ........ 40 

Modes of selection ........ 44 

Conditions of Compurgation. 

Employed in default of testimony 48 

Except in Wales . . . . . . . . .51 

Dependent on importance of case . . . . . • S^ 

Formulas and Procedure. 

Forms of compurgatorial oath ...... 53 

Modes of administration . . . . . • • 55 

Qualified confidence reposed in compurgation . . • 56 

Conjurators liable to ptnaliies of perjury .... 58 

1* 



VI CONTENTS. 

PAGE 

Decline of Compurgation. 

Early efforts to limit or abolish it . . . . . .61 

The oath no longer a positive asseveration .... 66 

Influence of revival of Roman Lav/ . . . . .67 

Conservatism of Feudalism . . . . . . .71 

Gradual disappearance of Compurgation in Continental Europe 73 
Preserved in England until 1833 . . . . . . 78 

Maintained in the Church and in the Inquisition . . .81 

Accusatorial Conjurators. 

Employed by the Barbarians ...... 86 

Maintained until the sixteenth century ..... 90 



II. 

THE WAGER OF BATTLE. 

Natural tendency to appeal to Heaven ...... 93 

Distinction between the Judicial Combat and the Duel ... 95 

Origin of the Judicial Combat. 

A prehistoric Aryan custom ..... . . 99 

Extension of Use of the Judicial Combat. 

Its form Christianized into an appeal to God .... 108 

Universality of its employment . . . . . .109 

Practice of challenging vi^itnesses . . , . . .111 

of challenging judges . . . . . .113 

Confidence reposed in the Judicial Combat. 

Its jurisdiction universal . . . . . . . i r8 

Implicit faith reposed in it . . . . . . .126 

Limitations imposed on the Judicial Combat. 

Respective rights of plaintiff and defendant . . . .128 

Minimum limit of value . . . . . . • ^33 

Questions of rank . . . . . . . '135 

Liability of women to the combat . . . . . .138 

of ecclesiastics . . . . . . .140 

The combat under ecclesiastical jurisdiction .... 144 

Not recognized in mercantile law . . . , . .147 



CONTENTS. 



Regulations of the Judicial Combat. 
Penalty for defeat 
Security required of combatants 
Choice of weapons 



Champions. 

Originally kinsmen .... 
Employment of champions becomes general 
Hired champions were originally witnesses 
Punishment for defeated champions 
Professional champions 
Efforts to limit the use of champions 
Champions of communities . 
of the Church 



Decline of the Judicial Combat. 

Iceland and Norway the first to prohibit it 
Opposition of the Municipalities . 

of the Church .... 
Influence of the Roman Law 
Struggle over its abolition in France 

Reforms of St. Louis .... 

Resistance of the Feudatories 

Reaction after the death of St. Louis 

Renewed efforts of Philippe-le-Bel 

Continued by his successors . 

Occasional cases in fifteenth and sixteenth centuries 

Final disappearance ...... 

Its later history in Hungary, Italy, Flanders, Russia, Scotland 
Maintained in England until the nineteenth century 
Traces of its legal existence in the United States . 



155 
156 



158 
160 
161 
163 
164 
168 
174 
175 

176 
177 

182 
185 
190 
I go 
192 

195 
196 
200 
204 
208 
208 
211 
216 



III. 

THE ORDEAL. 



Tendency of the human mind to cast its doubts on God 
China an exception ...... 

The Ordeal in Africa ...... 

in the Indian and Pacific Archipelagos 
among pre-Aryan Indian Tribes . 



217 

219 
221 

224 
225 



Vlll 



CONTENTS. 



Traces of the Ordeal in Egypt . . . . . . .226 

Among Semitic Races — The Assyrians, Hebrews, Moslem . . 227 

Among Aryans — Mazdeism ........ 232 

Hinduism — Buddhism ........ 234 

Hellenes and Italiotes ........ 236 

Celts, Teutons, Slavs ........ 238 

The Ordeal in the Barbarian occupation of Europe . . . 241 

Adopted by the Church ........ 242 



Ordeal of Boiling Water. 

Details of its administration .... 
Miracles reversing the ordinary process . 

Ordeal of Red-hot Iron. 

Various forms of its administration 
Specially used in cases of importance 

and in cases of disputed paternity 
Examples of its use ..... 
Miracles reversing the ordinary process . 

Ordeal of Fire. 

Its prototypes ...... 

Cases of its use ...... 

Used to test relics ...... 



Ordeal of Cold Water. 

Requires a miracle for conviction . 
Mode of administration 
' Supposed origin in ninth century . 
Received in general use . ... 

Prolonged employment in witchcraft cases 
Occasionally used in nineteenth century . 

Ordeal of the Balance. 
Modes of administration 



Ordeal of the Cross. 

It is one of endurance . 
Variations in procedure 

The Corsn^d. 

Formula of employment 
Cases of its use . 



244 
250 



252 
256 

259 
260 
265 

266 
267 
277 



279 
280 
282 
283 
286 
293 



294 

296 
297 

299 
3^1 



CONTENTS. IX 

PAGE 

The Eucharist as an Ordeal. 

Superstitions connected with the Eucharist .... 304 

Cases of its use as an ordeal ....... 307 

Still used in seventeenth century . . . . . .311 

Ordeal of the Lot. 

Various modes of its administration . . . . .311 

Appeals to chance — Ordeal of Bible and key - . . .314 

Bier-Right. 

Doubtful origin . . . . . . . . '3^5 

Cases of its use . . . , . . . . .316 

It lingers to the present day ....... '322 

Oaths as Ordeals. 

Superstitions connected with the oath . . . . -323 
Risks of perjury in oaths on relics ..... 323 

Poison Ordeals. 

Used in India, not in Europe ...... 327 

Irregular Ordeals. 

Iron bands on murderers . . . . . . .329 

Cases of miraculous interposition ...... 330 

Conditions of the Ordeal. 

It is a regular judicial procedure ...... 333 

Absence of testimony usually a prerequisite .... 335 

Usually a means of defence . . . . . . '337 

Used in default of compurgation ...... 338 

Sometimes regarded as a punishment . . . . . 339 

Its use in extorting confessions ...... 342 

Practically amounts to torture ...... 343 

Confidence reposed in the Ordeal. 

Compounding for the ordeal ....... 347 

Conflicting views as to its efficacy ...... 348 

Explanations of its unjust results . . . . . - 3SO 

Regulations to enforce its impartial administration . . . 353 

The Church and the Ordeal. 

The Papacy consistently opposes it . . . . -355 

But it is sustained by the clergy . . . . . • 355 

Advantages derived from it by the clergy . . . -359 

The Popes at length undertake its abolition .... 363 



CONTENTS. 



Repressive Secular Legislation. 
Forbidden in England in 1 2 19 
Gradually falls into desuetude 
Influence of Roman Law and of the communes 
Persistence of suoerstition .... 



PAGE 

364 
368 

369 



IV. 

TORTURE. 

The ordeal and torture are substitutes for each other 
Torture in Egypt — in Assyria — not used by Hebrews 
Not used by Oriental Aryans .... 

Greece and Rome. 

Usages of torture in Greece .... 
Rome — freemen not liable under Republic 

Caesarism extends the use of torture . 

Limited by Inscription and the Lex Talionis 

Torture of witnesses 

Liability of slaves to torture 

Limitations on use of torture 

Value of evidence under torture 

The Barbarians. 

Structure of Barbarian society 

Freemen originally not liable — torture of slaves 

Illegal torture of freemen by the Merovingians 

The Goths. 

Influence of Roman institutions on the Golhs 
Torture under the Ostrogoths 
Employed by the Wisigoths — details of its use 
Transmitted by them to modern Spain . 
Legislation of Las Siete Partidas . 
Final shape of torture system in Spain . 

Carlovingian and Feudal Law. 

Torture first used for witchcraft, under Charlemagne 
Character of institutions adverse to its use 
Feudalism not favorable to it 
Torture used for punishment and extortion 
Ecclesiastical influence adverse to its use 



. 


. 371 




. 372 


• 


• zn 


. 


• 374 


. 


. 376 


. 


. 377 


lis 


. 381 


. 


. 382 




382 


. 


. 387 


• 


388 


. . 


391 


. 


392 




395 


. 


397 


. 


398 


. 


399 


. 


403 




403 


• ^ • 


408 


e 


411 


. 


413 


, 


•414 


. 


415 


. 


419 



CONTENTS, 



XI 



Reappearance of Torture. 

Influence of the Roman Law . . . . 

Torture first appears in Latin kingdom of Jerusalem 
It is revived in Italy in 13th century 
Influence of the Inquisition .... 
First appearance of torture in France, in 1254 
Its gradual introduction — 1283 to 1319 . 
Resistance of the nobles in 131 5 . 
Permanently established in opposition to Feudalism 
Examples of procedure in the Chatelet of Paris, 1 389-1 392 
Introduction in Germany — Corsica — Venice — the Valtelline- 
Hungary — Poland — Russia ..... 

The Inquisitorial Process. 

Secret proceedings and denial of opportunity for defence 

Perfected by Francis I. . 

Revised under Louis XIV. .... 

Torture avec reserve des preuves 

Illegal extension of the system in the Netherlands 

Germany — the Caroline Constitutions 

Final Shape of the Torture System. 

The Roman Law engrafted on German Jurisprudence 

Theoretical exemptions practically annulled . 

The accused abandoned to the discretion of the judge 

Torture of witnesses .... 

Denial of opportunities for defence 

Abuse of the power lodged with the judge 

Influence of the system upon the judge . 

Confirmation of confession necessary 

Influence of witch-trials in aggravating the torture system 

Torture in monasteries ....... 



England and the Northern Races. 

Influence of the jury-trial in delaying introduction of Torture 

in Denmark, Norway, and. Sweden . . 

England — Torture unknown to the Common Law . 

Introduced as a concession to the royal prerogative 
Influence of witch-trials ..... 

Scotland — frightful severity of torture trials .... 



420 
422 
423 
425 
428 

432 
435 
438 
441 

446 



451 
453 
456 
458 
460 
461 



463 
464 
466 
470 
473 
475 
481 

485 
490 
496 



497 
500 

503 
506 
508 



XU CONTENTS. 



Decline of the Torture System. 

Opponents arise — Vives, Montaigne, Graefe, Sec. — Gradual ef- 
forts to abolish it . . ..... 

Abolished in Prussia in 1740 ..... 

in Saxony, Austria, Ru&>ia .... 

Continued in Baden till 1831 — Retention of the Inquisitorial 

Process, and Revival of Torture in the German Empire 
Abolished in Spain in 1812 . 

in France, 1 780-1 789 ..... 

in Italy in 1786 ...... 

Recent instances of its use ...... 



512 
514 
516 

517 
518 
518 
522 
522 



I. 

THE WAGER OF LAW. 



SOCIAL ORGANIZATION OF THE ARYAN RACES. 

The conception of crime as a wrong committed against 
society is too abstract to find expression in the institutions 
of uncivilized communities. The slayer or the spoiler is an 
enemy, not of his fellows in general, but only of the suf- 
ferer or of his kindred; and if society can provide means 
for the wronged to exact reparation, it has done its duty to 
the utmost, and has, indeed, made a notable advance on 
the path that leads from barbarism to civilization. How 
recent has been our progress beyond this stage of develop- 
ment, is illustrated in the provisions of a code granted so 
lately as 1231 by the Abbey of St. Bertin to the town of 
Arques. By these laws, when a man was convicted of inten- 
tional homicide, he was handed over to the family of the 
murdered person, to be slain by them in turn.^ It still was 
vengeance, and not justice, that was to be satisfied. 

In early times, therefore, the wrong-doer owed no satisfac- 
tion to the law or to the state, but only to the injured party. 
That injured party, moreover, was not a mere individual. 
All the races of the great Aryan branch of mankind have de- 
veloped through a common plan of organization, in which 
each family — sometimes merely the circle of near kindred, 
at others enlarged into a gens or sept — was a unit with respect 

' Legg. Villse de Arkes, \ xxviii. (D'Achery Spicileg. III. 608). 
2 



14 THEWAGEROFLAW. 

to the Other similar aggregations in the tribe or nation, pre- 
senting, with respect to personal rights, features analogous to 
their communal holding of land. Within these units, as a 
general rule, each individual was personally answerable for 
all, and all were answerable for each. A characteristic inci- 
dent of this system was the wer-gild or blood-money, through 
which offences were condoned and the aggrieved were satis- 
fied by a payment made, when the crime was homicide, to 
the kindred of the slain, and generally contributed by the 
kindred of the slayer. 

The fragments of the Avesta are the earliest records of 
Aryan legislation that have reached us, and in them we find 
distinctly marked evidence of this common responsibility of 
the kindred.^ Among the Hindus, the most ancient extant 
code, the Manava Dharma Sastra, represents a highly com- 
plex social organization, in which primitive institutions have 
been completely overlaid by the later and antagonistic ele- 
ments of caste and Brahmanism, but yet it reveals the exist- 
ence of village communities which were a direct development 
of the primal system of the family;^ and in the adventures of 
the Kauravas and Pandavas the Mahabharata preserves frag- 
ments of traditions conveying some indications of a pre- 
existing solidarity among kindred.^ Much mt)re clearly de- 
fined were the Hellenic organizations of the patrcz and 
phratricej while the institution of the wer-gild is seen in the 
wages earned by Heracles in serving Omphale, to be paid to 

> Vendidad, Farg. IV, 24-35 (Bleeck's Translation, Hertford, 1864, 
pp. 30-1). 

2 Manava Dharma Sastra, VIII, 295 sqq. Comp, Maine's Ancient 
Law, pp, 260 sqq. 

3 Even among the remnants of the pre-Aryan races of India the same 
customs are traceable. Early in the present century Lieutenant Shaw 
described the hill-tribes of Rajmahal, to the north of Bengal, as recog- 
nizing the responsibility of the injurer to the injured; compensation was 
assessed at the pleasure of the complainant, and the kindred of the offender 
were compelled to contribute to it, exactly as among the barbarians who 
occupied Europe. (Asiatic Researches, Vol. IV.) 



SOCIAL ORGANIZATION. I5 

the kinsmen of the murdered Iphitus, and its existence can 
be traced to historic times in the payments provided by the 
Trallian laws to the families of the subject Leleges and 
Minyans who might be slain. Sir Henry Maine has acutely 
suggested, also, that the belief in an hereditary curse, which 
plays so awful a part in Grecian legend, is derived from the 
primal idea of the solidarity of the family group. ^ In Rome, 
notwithstanding the powerful Latin tendency to absorb all 
minor subdivisions into the state, the institution of the gens f 
and the relationship between the patron and his clients bear 
striking analogies to the organizations which we find among 
the Teutonic tribes as they emerge into history; while the 
fine imposed on the elder Horatius, to expiate for his son 
the crime of slaying his sister, shows a remnant still existing 
of the wer-gild levied on the relatives.^ The early legisla- 
tion of the Celts, both in the Irish and Welsh tribes, as we 
shall presently see, carried the solidarity of the family to its 
highest point of development. The same institutions form 
a prominent feature of social organization among the Slavs. 
The Russian Mir, or communal society, is evidently a de- 
velopment of the original family ; while the Ruskaia Prawda, 
the earliest extant code, promulgated by Yaroslav Vladomi- 
rovich in the eleventh century, allows the relatives of a 
murdered man either to kill the murderer or to accept a 
wcr-gildixQWi him. The district, moreover, in which a homi- 
cide occurs is liable to a fine, unless the victim is an unknown 
stranger : as such, there are none to claim compensation 
for him, he is outside of all family organization, and the 
law has no protection for him.'^ In Poland, the laws in 
force until the close of the fifteenth century provided no 

' Dicsearclii Frag. (Didot, Frag, Hist. Graecor.). — Apollodor. Bib- 
lioth II. vi. 2-3. — Diodor. Siculi iv. 31. — Plut. Quaest. Graec. 46. — 
Maine's Ancient Law, p. 127. 

2 Tit. Liv, I. 26; v. 32. — Appiani de Bell. Hannibal xxviii. — Dion. 
Halicar. II. lO; xiii. 5. 

3 Esneaux, Hist, de Russie, I. 172 sqq. 



l6 THE WAGER OF LAW. 

other penalty for murder than a wer-gild to be divided 
among the kindred and friends of the slain \ and during 
the fifteenth century there was only a short term of imprison- 
ment added. ^ Among the southern Slavs the Zadruga takes 
the place of the Russian Mir, and is a still more absolute 
and primitive form of family organization. ^ 

In obedience to this all-pervading tendency of organiza- 
tion, the barbarian tribes which overthrew the Roman Em- 
pire based their institutions on two general principles — the 
independence of the individual freeman and the solidarity 
of the family group — and on these was founded their rude 
jurisprudence. As the criminal was not responsible to the 
state, but to the injured party, personal punishments were 
unknown, and the law made no attempt to decree them. 
All that it could do was to provide rude courts before which 
a plaintiff could state his case, and a settled tariff of pecu- 
niary compensation to console him for his sufferings.^ If 
he disdained this peaceful process, he was at liberty to as- 
semble his kindred and friends, and exact what satisfaction 
he could with sword and axe. The offender, moreover, 
could not legitimately refuse to appear when summoned 
before the mallufn, or judicial assembly of the tribe j nor 
could he, as a rule, claim the right of armed defence, if the 
complainant preferred to receive the money payment pro- 
vided for the offence of which he might prove his antagonist 
guilty. 

This wer-gild was in no sense a fine inflicted as a punish- 

• Jo. Herburti de Fulstin Statut. Reg. Polon. tit. Hoinicid. (Samoscii, 
1597, pp. 20D sqq.). In cases, however, of homicide committed by a 
kmetho, or serf, upon another, a portion of the wer-gild was paid to the 
magistrate. 

2 See an abstract of Bojisic's work on the customs of the southern 
Slavs, in the "Penn Monthly" Magazine, Phila., Jan. 1878, pp. 15 sqq. 

3 Gradually, however, a portion of the composition money was attri- 
buted, under the name oifredum, to the king or the magistrate, as a com- 
pensation for readmitting the criminal to the public peace. 



BARBARIAN INSTITUTIONS. I7 

ment for guilt, but only a compensation to induce the injured 
party to forego his right of reprisals, and the interest which 
society felt in it was not in the repression of crime, but in 
the maintenance of peace by averting the endless warfare of 
hostile families. An Anglo-Saxon proverb, quoted approv- 
ingly in the laws of Edward the Confessor, as collected by 
William the Conqueror, says: ''Bicge spere of side o'Ser 
bere" — Buy off the spear from thy side or endure it.^ The 
application of the system is to be seen in the minute and 
complex tariffs of crime which form so large a portion of 
the barbarian codes. Every attempt against person and 
property is rated at its appropriate price, from the theft of a 
sucking pig to the armed occupation of an estate, and from 
a wound of the little finger to the most atrocious of parri- 
cides. To what extent this at last was carried may be seen 
in the Welsh codes, where every hair of the eyelash is rated 
at a penny. ^ 

This system introduced into legal proceedings a commer- 
cial spirit which seems strangely at variance with the savage 
heroism commonly attributed to our barbarian ancestors. 
In the translation by Mr. Dasent of the old Icelandic Saga 
of Burnt Njal is vividly set forth the complex procedure 
which arose from the development of these principles, 
whereby suits could be sold and assigned by one party to 
another, and a plaintiff with a promising claim for damages 
would part with it to some speculator who undertook the 
chances of the suit; or, if the prospects were not encou- 
raging, he would pay some shrewd lawyer or mighty warrior 
to prosecute it in his stead. As either party in the primitive 
Icelandic code could at any moment interrupt the proceed- 
ings with a challenge to single combat, or a powerful 
pleader might collect his friends for a raid on the Althing 

^ LI. Edwardi, c. xii. (Thorpe's Ancient Laws, I. 467). 
2 Gwentian Code, Bk. 11. chap. vii. ^ 8. (Aneurin Owen's Ancient 
Laws, etc. of Wales, I. 701,) 



l8 THEWAGEROFLAW. 

and thus brccak up the court, this traffic in suits was a specu- 
lation well fitted to vary the monotony of a sea-rover's life 
on shore. 

In the application of this principle of compensation the 
solidarity of the family bore a part as conspicuous as in the 
alternative of private warfare. The kindred of the offender 
were obliged to contribute shares proportionate to their de- 
grees of relationship; while those of the man who was 
wronged received respective percentages calculated on the 
same basis. Thus the most ancient Barbarian code that 
has reached us — that of the Feini, or primitive Irish — in a 
fanciful quadripartite enumeration of the principles in force 
in levying fines, alludes to the responsibility of kindred — 
"And because there are four things for which it is levied: 
'cin' (one's own crime), and 'tobhach' (the crime of a near 
kinsman), 'saighi' (the crime of a middle kinsman), and the 
crime of a kmsman in general."^ Avery complete example 
of the development of this system is to be found in the Ice- 
landic legislation of the twelfth century, where the fines 
exacted diminish gradually, as far as the relatives in the 
fifth degree on both sides, each grade of the criminal's 
family paying its rate to the corresponding grade of the 
sufferer's kindred.^ When, however, the next of kin were 
females, and were thus incompetent to prosecute for murder, 
the person who undertook that office was rewarded with 
one-third of the fine.^ It was not until about 1270 that King 
Haco, in his unsuccessful attempt to reform these laws, ven- 
tured to decree that in cases of murder the blood-money 
should not be divided among the family of the victim, but 
should all be paid to the heir.* On the other hand, in 
Denmark, Eric VII., in 1269, relieved the kindred of the 



' Senchus Mor, I. 259 (Hancock's ed. Dublin, 1865). 
2 Gr^gas, Sect. iv. cap. cxiv. ^ ihid. Sect. viii. cap. Iv. 

* Jarnsida, Mannhelge, cap, xxix. — Cf. Legg. Gulatbingenses, Mann- 
helgi, cap. xii. 



SOLIDARITY OF FAMILIES. I9 

murderer from contributing to the wer-gild, although it 
continued to be divided among the relatives of the slain. ^ 

Among the Welsh the provisions for levying and distri- 
buting the fines were almost as complex as those of the 
early Icelandic law, one body of jurisprudence extending 
the liability even as far as sixth cousins;^ and perhaps the 
quaintest expression of the responsibility of the kindred is 
to be found in the regulation that if any one should draw 
blood from the abbot of either of the seven great houses of 
Dyved, the offender should forfeit seven pounds, while a 
female of his kindred should become a washerwoman in 
token of disgrace.^ The firm hold which this practical 
solidarity of the family had upon the jurisprudence of the 
European races is shown by a clause in the statutes of the 
city of Lille, as late as the fourteenth century, where the 
malefactor had the right to collect from his relatives a por- 
tion of the wer-gild which he had incurred; and elaborate 
tables were drawn up, showing the amount payable by each 
relative in proportion to his degree of kinship, the liability 
extending as far as to third cousins.* A still more pregnant 
example of the responsibility of kindred is found in the cus- 
toms of Aspres, in 1184, where the kindred of a homicide, 
if they would abjure him by oath on relics, were entitled to 
the public peace; but if they refused to do so, it became the 
duty of the Count of Hainault, the Abbot of St. Vaast, and 
the relatives of the slain, to hunt them down, and seize all 
their property.^ 

The introduction of Christianity, with the all-pervading 
sacerdotalism of the church, rendered necessary an innova- 

» Constit. Eric. Ann. 1269, I vii. (Ludewig, Reliq. MSS. T. XII. 
p. 204). 

2 Dimetian Code, Bk. 11. ch. i. \\ 17-31 — Bk. ni. ch. iii. \ 4 — Anoma- 
lous Laws, Bk. IV. ch. iii. ^11. 

3 Dimetian Code, Bk. 11. chap. xxiv. \ 11. 

4 Roisin, Franchises, etc. de la ville de Lille, pp. 106-7. 

5 Charta Balduini Hannoniens. (Martene, Collect. Ampliss. I. 964.) 



20 THEWAGEROFLAW. 

tion on the primeval form of social organization, for eccle- 
siastical ties dissolved those of the family. By the Carlo- 
vingian legislation, when a priest was slain his wer-gild was 
paid to the church, which was held to be nearer to him than 
any relative,^ though this regulation subsequently was modi- 
fied so as to divide the composition into three parts, of 
which one was paid to the church of the deceased, one to 
his bishop, and the third to his kindred.^ As a general rule, 
therefore, the clerk could claim no share of the blood-money 
collected for the murder of his kinsmen, nor be called upon 
to contribute to that incurred by his family;^ though it is 
true that, by the Welsh laws of Hoel the Good, compiled in 
the tenth century, children, even prospective, were a link 
through which the liability might be again incurred. *' Nei- 
ther clerks nor women are to have a share of the galanas^ 
since they are not avengers ; however, they are to pay for 
their children or to make oath that they shall never have 
any."* 

With this exception, therefore, in its relations to the com- 
munity, each family in the barbaric tribes was a unit, both 
for attack and defence, whether recourse was had to the 
jealously preserved right of private warfare, or whether the 
injured parties contented themselves with the more peaceful 
processes of the inallum or althing. This solidarity of the 
kindred is the key to much that would otherwise appear 
irrational in their legislation, and left, as we have seen, its 
traces late in the feudal and customary law. 



THE OATH AND ITS ACCESSORIES. 

Between the commission of an offence and its proof in a 
court of justice, there lies a wide field for the exercise or 
perversion of human ingenuity. The subject of evidence is 

' Capitul, Lib. iv. cap. 15. 2 Concil. Tribur. an. 895, can. iv. 

^ Dimetian Code, Bk. ii. chap. i. § 32. 
4 Venedotian Code, Bk. in. chap. i. \ 21. 



VALUE OF OATHS. 21 

one which has taxed man's reasoning powers to the utmost; 
and the subtle distinctions of the Roman law, with its proba- 
tio, prcesumpHo juris, prcEsumptio juris tantum : the endless 
refinements of the glossators, rating evidence in its different 
grades, as prohatio optinia, evidentissiina, aperiissima, legiti- 
ma, sufficiens, indicbitata, dilucida, liquida, evidens, pe?'spicua, 
and semiplena; and the complicated rules which bewilder the 
student of the common law, all alike show the importance of 
the subject, and its supreme difficulty. The semi-barbarian, 
impatient of such expenditure of logic, arrived at results by 
a shorter and more direct process. 

Some writers have assumed that the unsupported oath of 
the accused was originally sufficient to clear him of a charge, 
and they dilate with enthusiasm on the heroic age, when a 
lie is cowardice, and the fierce warrior disdains to shrink 
from the consequences of his act. All this is purely conven- 
tional, and justification will vainly be sought for it in any of 
the unadulterated records of the barbarians. It was not, 
indeed, until long after the Teutonic tribes had declined 
from the assumed virtues of their native forests, that an 
unsupported oath was receivable as evidence, and the intro- 
duction of such a custom may be traced to the influence of 
the Roman law, in which the importance of the oath was 
overwhelming.^ The Wisigoths, who moulded their laws on 
the Roman jurisprudence, were the only race of barbarians 
who permitted the accused, in the absence of definite testi- 
mony, to escape on his single oath,^ and this exception only 

1 The oath may be regarded as the foundation of Roman legal proce- 
dure — " Uato jurejurando non aliud quaeritur, quam an juratum sit; 
remissa qusestione an debeatur; quasi satis probatum sit jurejurando." 
L. 5, \ 2, D, XII. ii. T^^Q. jusjurandiun necessarium could always bead- 
ministered by the judge in cases of deficient evidence, and \h^ jiisjurandum 
injure proffered by the plaintiff to the defendant was conclusive: " Mani- 
festoe turpitudinis et confessionis est nolle nee jurare nee jusjurandum 
referre." Ibid. L 38. 

2 LI. Wisigoth. Lib. 11. Tit. ii. c. 5. 



22 THEWAGEROFLAW. 

tends to prove the rule. So great was the abhorrence of the 
other races for practices of this kind, that at the council of 
Valence, in 855, the Wisigothic custom was denounced in 
the strongest terms as an incentive to perjur3^^ It was not 
until long after the primitive customs of the wild tribes had 
become essentially modified by contact with the remains of 
Roman civilization, that such procedures were regarded as 
admissible ; and, indeed, it required the revival of the study 
of the civil law in the twelfth century to give the practice a 
position entitled to respect.^ 

• Concil. Valentin, ann. 855, c, xi. 

2 Thus Alfonso the Wise endeavored to introduce into Spain the mutual 
challenging of the parties involved in the ^o\n2.Vi jiisjurandum injure, by 
his jura de juicio (Las Siete Partidas, P. ill. Tit. xi. 1. 2). Oddly 
enough, the same procedure is found incorporated in the municipal law of 
Rheims in the fourteenth century, probably introduced by some over- 
zealous civilian; "Si alicui deferatur jusjurandum, necesse habet jurare 
vel referre jusjurandum, et hoc super quovis debito, vel inter quasvis per- 
sonas." Lib. Pract. de Consuetud. Remens. § 15 (Archives Legislat. de 
Reims, P. I. p. 37). By this time, however, the oaths of parties had 
assumed great importance. In the legislation of St. Louis, they occupy a 
position which was a direct incentive to perjury. Thus he provides for 
the hanging of the owner of a beast which had killed a man, if he was 
foolish enough not to swear that he was ignorant of its being vicious. 
" Et si il estoit si fox que il deist que il seust la teche de la beste, il en 
seroit pendus pour la recoignoissance." — Etablissements, Liv. I. chap, 
cxxi. 

In certain local codes, the purgatorial power of the oath was carried to 
the most absurd extent. Thus, in the thirteenth century, the municipal 
law of the Saxons enabled the accused in certain cases to clear himself, 
however notorious the facts of the case, and no evidence was admitted to 
disprove his position, unless it were a question of theft, and the stolen 
articles were found in his possession, or he had suffered a previous convic- 
tion. (Jur. Provin. Saxon. Lib. I. Ait. 15, 18, .39; Lib, 11. Art. 4, 72.) 
This irrational abuse was long in vogue, and was denounced by the coun- 
cil of Bale in the fifteenth century (Schiller. Thesaur. II, 291). It only 
prevailed in the north of Germany; the Jus Provin. Alaman. (cap. ccclxxxi. 
^3), which regulated Southern Germany, alludes to it as one of the dis- 
tinguishing features of the Saxon code. 

So, also, at the same period a special privilege was claimed by the in- 



CLASS PRIVILEGES. 23 

It is true that occasionally, in the early legislation of the 
barbarians, an instance occurs in which certain privileges in 
this respect are accorded to some classes in the community, 
but these are special immunities bestowed on rank. Thus in 
one of the most primitive of the Anglo-Saxon codes, which 
dates from the seventh century, the king and the bishop are 
permitted to rebut an accusation with their simple assevera- 
tion, and the thane and the mass-priest with a simple oath, 
while the great body both of clerks and laymen are forced 
to clear themselves by undergoing the regular form of canon- 
ical compurgation which will be hereafter described/ So, 
in the Welsh legislation, exemption from the oath of absolu- 
tion was accorded to bishops, lords, the deaf, the dumb, 
men of a different language, and pregnant women. ^ In- 
stances of class-privileges such as these may be traced 
throughout the whole period of the dark ages, and prove 
nothing except the advantages claimed and enjoyed by caste. 
Thus, by the law of Southern Germany, the unsupported 
oath of a claimant was sufficient, if he were a person of sub- 
stance and repute, while, if otherwise, he was obliged to 
provide two conjurators/ and in Castile, the fijodalgo, or 

habitants of Fi-anconia, ill virtue of which a murderer was allowed to rebut 
with his single oath all testimony as to his guilt, unless he chanced to be 
caught with the red hand. — Jur. Provin. Alaman. cap. cvi. § 7. 

A charter granted to the commune of Lorris, in 1 155, by Louis-le-Jeune, 
gives to burghers the privilege of rebutting by oath, without conjurators, 
an accusation unsupported by testimony. — Chart. Ludovic. junior, ann. 
1 155, cap. xxxii. (Isambert, Anciennes Lois Franfaises I. 157.) And, 
in comparatively modern times, in Germany, the same rule was followed. 
" Juramento rei, quod purgationis vocatur, ssepe etiam innocentia, utpote 
quae in anima constitit, probatur et indicia diluuntur;" and this oath was 
administered when the evidence was insufficient to justify torture. (Zan- 
geri Tract, de Quaesiionibus cap. iii. No. 46.) In 1592, Zanger wrote an 
elaborate essay to prove the evils of the custom. 

J Laws of Wihtraed, cap. 16-21. Comp. LI. Henrici I. Tit. Ixiv. ^ 8. 

2 Anomalous Laws, Book iv. chap. i. ^ ii. — (Owen's Laws and Insti- 
tutes of Wales, II. 5.) 

3 Jur. Provin. Alaman. cclxiv. 7, 8. 



24 THE WAGER OF LAW. 

noble, could rebut a claim in civil cases by taking three 
solemn oaths, in which he invoked on himself the vengeance 
of God in this world and the next.^ 

So far, indeed, were the Barbarians from reposing implicit 
confidence in the integrity of their fellows that their earliest 
records show how fully they shared in the common desire of 
mankind to place the oath under the most efficient guarantees 
that ingenuity could devise. In its most simple form the 
oath IS an invocation of some deity or supernatural power to 
grant or withhold his favor in accordance with the veracity 
of the swearer, but at all times the Aryans have sought to 
render this more impressive by interposing material objects 
dear to the individual, which were understood to be offered 
as pledges or victims for the divine wrath, and the similarity 
of the formulas employed shows that the origin of the cus- 
tom may be traced to a period anterior to the division of the 
parent stock. Thus the Manava Dharma Sastra prescribes 
the oath as satisfactory evidence in default of evidence, but 
requires it to be duly reinforced — 

" In cases where there is no testimony, and the judge can- 
not decide upon which side lies the truth, he can determine 
it fully by administering the oath. 

*' Oaths were sworn by the seven Maharshis, and by the 
gods, to make doubtful things manifest, and even Vasishtha 
sware an oath before the king Sudama, son of Piyavana, 
when Visvvamitra accused him of eating a hundred children. 

"Let not the wise man take an oath in vain, even for 
things of little weight ; for he who takes an oath in vain is 
lost in this world and the next. 

"Let the judge swear the Brahman by his truth; the Ksha- 
triya by his horses, his elephants, or his arms ; the Vaisya by 
his cows, his corn, and his gold; the Sudra by all crimes."^ 

We see the same custom in Greece, where Homer repre- 
sents Hera as exculpating herself by an oath on the sacred 
head of Zeus, and on their marriage bed, a practice which 

' Fuero Viejo ill. ii. 

^ Book VII. 109-13 (after Delongchamps' translation). 



ACCESSORIES OF THE OATH. 25 

mortals imitated by swearing on the heads of their children, 
or on that of their patron, or of the king.^ Under the Ro- 
man law, oaths were frequently taken on the head of the 
litigant, or on those of his children.^ The Norse warrior 
was sworn, like the Hindu Kshatriya, on his warlike gear : 

*' Oaths shalt thou By edge of sword, 

First to me swear, That thou wilt not slay 

By board of ship, The wife of Volund, 

By rim of shield, Nor of my bride 

By shoulder of steed. Cause the death. ''3 

When these material pledges were not offered, the sanc- 
tions of religion have in all ages been called into play to 
impress the imagination of the swearer with the awful respon- 
sibility incurred, the presence of the deity being obtained by 
the offer of a sacrifice, or his interposition being assured by 
the use of some object of peculiar sacredness. We see this 
in the horse which Tyndareus sacrificed and buried when he 
exacted from the suitors of Helen the oath that they would 
accede to her choice of a bridegroom and defend her and 
her husband against all comers ;* and it is only necessary to 
allude to the well-known Ara Maxima of Hercules in Rome 
to show the prevalence of the same customs among the Ital- 
iotes. Similar practices were familiar to the Norsemen. 
Among them the Godi was both priest and judge, the judg- 
ment-seat adjoined the temple, and all parties to a suit, inclu- 
ding judge and witnesses, were solemnly sworn upon the 
sacred ring kept for that purpose on the altar. It was sprin- 

' Iliad. XV. 36-40. — Luciani Philopseud. 5; Cataplus ii. 

2 LI. 3, 4, D. XII. ii. 

3 Volundarkvida 31 (Thorpe's Ssemund's Edda). A curious remnant of 
this is seen in the burgher law of Northern Germany in the thirteenth cen- 
tury, by which a man reclaiming a stolen horse was bound to kick its left 
foot with his right foot, while with his left hand he took hold of the ani- 
mal's ear and swore by its head that it was his. — Sachsisches Weichbild, 
art. 135. 

4 Pausan. iii. xx. 9. 

3 



26 THEWAGEROFLAW. 

kled with the blood of a sacrificial bull, and then the oath 
was taken by invoking Freyr and Niord, and the almighty 
As to help the swearer as he should maintain truth and jus- 
tice.^ Yet so little did all these precautions serve to curb the 
untruthfulness of the cunning sea-kings that in Viga-Glums 
Saga we find Glum denying a charge of murder by an oath 
taken in three temples, in which he called Odin to witness 
in words so craftily framed that while he was in reality con- 
fessing his guilt he apparently was denying it most circum- 
stantially.^ 

Similarly in Christian times, the most venerated forms 
of religion were, from a very early period, called in to 
lend sanctity to the imprecation, by devices which gave addi- 
tional solemnity to the awful ceremony. In this the natural 
tendency of the church to follow the traditional customs of 
the Aryans was reinforced by the example of the practices 
of Judaism. The " covenant between the pieces," by which 
Yahveh confirmed his promises to Abram, and by which the 
Jews renewed their promises to him, was a sacrificial cere- 
mony of the most impressive character, only to be used on 
occasions of supreme importance. As soon as a permanent 
place of worship was provided, the altar in the temple was 
resorted to by litigants in order that the oath might be taken 
in the presence of Yahveh himself; and so powerful was the 
impression of this upon the Christian mind that in the early 
ages of the church there was a popular superstition that an 
oath taken in a Jewish synagogue was more binding and 
more efficient than one taken elsewhere.^ These beliefs 
developed into a great variety of formulas, which would re- 
ward an examination more detailed than that which I can 
give them here. 

In the middle of the sixth century, Pope Pelagius I. did 

' Islands Landnamabok iv. 7; II. 9 (Ed. 1774, pp. 299, S;^). 

2 Keyser's Religion of the Northmen, Pennock's Translation, p. 238. 

3 Gen. XV. 9-17. — Jer. xxxiv. 18-19. — I. Kings, viii. 31-2. — Chrysost. 
Orat. adv. Jud. i. 3. 



MULTIPLE OATHS. 27 

not disdain to absolve himself from the charge of having 
been concerned in the troubles which drove his predecessor 
Vigilius into exile, by taking a disculpatory oath in the 
pulpit, holding over his head a crucifix and the Gospels.^ 
About the same period, when the holy Gregory of Tours 
was accused of reproachful words truly spoken of the in- 
famous Fredegonda, a council of bishops decided that he 
should clear himself of the charge by oaths on three altars, 
after celebrating mass on each, which he duly performed, 
doubtless more to his corporeal than his spiritual benefit.^ 
This plan of reduplicating oaths on different altars was an 
established practice among the Anglo-Saxons, who, in cer- 
tain cases, allowed the plaintiff to substantiate his assertion 
by swearing in four churches, while the defendant could 
rebut the charge by taking an oath of negation in twelve.^ 
Seven altars are similarly specified in the ancient Welsh laws 
in cases where a surety desired to deny his suretyship ;* and, 
according to the Fleta, as late as the thirteenth century, a 
custom was current among merchants, of proving the pay- 
ment of a debt by swearing in nine churches, the abuse of 
which led to its abrogation.^ 

The intense veneration with which relics were regarded, 
however, caused them to be generally adopted as the most 
effective means of adding security to oaths, and so little 
respect was felt for the simple oath that, ere long, the ad- 

' Anastas. Biblioth. No. Lxn. 

2 Gregor. Turon. Hist. Lib. v. cap. xlix. Gregory complains that this 
was contrary to the canons, of which more hereafter. 

3 Dooms of Alfred, cap. 33. 

4 Dimetian Code, Bk. 11. chap. vi. \ 17 (Owen, I. 431). 

5 Fleta, Lib, ii. cap. Ixiii. \ 12. The Moslem jurisprudence has a 
somewhat similar provision for accusatorial oaths in the lesame by which 
a murderer can be convicted, in the absence of testimony or confession, 
by fifty oaths sworn by relatives of the victim. Of these there must be at 
least two, and the fifty oaths are divided between them in proportion to 
their respective legal shares in the Die, or blood-money for the murder. — 
Du Boys, Droit Criminel des Peuples Modernes, I. 269. 



28 THE WAGER OF LAW. 

juncts came to be looked upon as the essential feature, and 
the imprecation itself to be divested of binding force with- 
out them. Thus, in 680, when Ebroin, mayor of the palace 
of Burgundy, had defeated Martin, Duke of Austrasia, and 
desired to entice him from his refuge in the stronghold of 
Laon, two bishops were sent to him bearing the royal re- 
liquaries, on which they swore that his life should be safe. 
Ebroin, however, had astutely removed the holy remains 
from their cases in advance, and when he thus got his 
enemy in his power, he held it but a venial indiscretion to 
expose Martin to a shameful death. ^ How thoroughly this 
was in accordance with the ideas of the age is shown by the 
incorporation, in the canons of the church, of the doctrine 
that an oath was to be estimated by its externals and not by 
itself. The penitential of St. David, dating from the latter 
half of the sixth century, provides that perjury committed in 
a church shall be punished by a fine of four times the value 
of that for which the false oath was taken, ^ but no penalty 
is provided for false swearing elsewhere. As the theory 
developed itself this tacit condoning of such perjury was 
boldly declared to be good ecclesiastical law, and the 
venerable code of morality which passes under the name of 
Theodore Archbishop of Canterbury assumes that a false 
oath taken on a consecrated cross requires, for absolution, 
three times the penance necessary in cases where the oath 
had been taken on an unconsecrated one, while, if the minis- 
tration of a priest had not been employed, the oath was void, 
and no penalty was inflicted for its violation.^ In a similar 
mood the penitential of Gregory III. provides that three 

' Fredegarii Chron. cap. xcvii, 

2 Excerpt, de Libro Davidis No. xvi. (Haddau and Stubbs's Councils 
of Great Britain, I. 120). 

^ Si in manu episcopi . . . aut in cruce consecrata perjurat III. annos 
poeniteat. Si vero m cruce non consecrata perjurat, I. annum poeniteat; 
si autem in manu hominis laici juraverit, nihil est. — Theodori Cantuar. 
Poenit. cap. xxiv. | 2. (Thorpe, Ancient Laws, vol. II. p. 29.) 



ACCESSORIES OF THE OATH. 29 

years' penance will absolve for perjury committed on a con- 
secrated cross or on the hand of a bishop or priest, while 
seven years are requisite if the oath has been taken on the 
gospels or on an altar with relics/ 

These principles were adopted as the fundamental basis 
of all legal procedures in Wales. Every prosecution and 
defence required relics to give validity to the oaths of both 
parties, and even in the fifteenth century a collection of 
laws declares that a plaintiff coming into court without a 
relic on which to make his oath, not only lost his cause but 
incurred a fine of nine-score pence. The same tendency is 
shown in the rule by which a man who suspected another of 
theft could go to him with a relic, and in the presence of 
witnesses demand an oath of negation, a failure in which was 
a conviction of the crime imputed, without further trial. '•^ 
In the same spirit, ecclesiastical authority was even found to 
admit that a powerful motive might extenuate the sin of 
perjury. If committed voluntarily, seven years of penitence 
were enjoined for its absolution ; if involuntarily, sixteen 
months, while if to preserve life or limb, the offence could 
be washed out with four months.^ When such doctrines 

• Gregor. PP. III. de Criminibus et Remediis, cap. vii. 

2 Anomalous Laws, Boole ix. chap. v. § 3, chap, xxxviii. | I (Owen, 

II. 233, 303.) The definition of relics, however, was somewhat vague — 
" There are three relics to swear by: the staff of a priest; the name of 
God; and hand to hand with the one sworn to." Bk. xill. ch. ii. | 219. 
(Ibid. II. 557.) 

3 Regino de Eccles, Discip. Lib. I. cap. ccc. See also Gregor. PP. 

III. de Crimin. loc. cit. and Jur. Provin. Saxon, Lib. in. c. 41. Not- 
withstanding the shocking laxity of these doctrines, it is not to be sup- 
posed that the true theory of the oath was altogether lost. St. Isidor of 
Seville, who was but little anterior to Theodore of Canterbury, well ex- 
presses it: "Quacunque arte verborum quisque juret, Deus tamen, qui 
conscientise testis est, ita hoc accipit, sicut ille cui juratur intelligit," and 
this, being adopted in successive collections of canons, coexisted with the 
above as a maxim of ecclesiastical law (Ivon. Decret P. xii. c. 36. — Gra- 
tian. caus. xxii, q. 2 can. 13). 

-7* 



30 THE WAGER OF LAW. 

were received and acted upon, we can hardly wonder at the 
ingenious device which the sensitive charity of King Robert 
the Pious imitated from the duplicity of Ebroin, to save the 
souls of his friends. He provided two reliquaries on which 
to receive their oaths — one for his magnates, splendidly 
fabricated of crystal and gold, but entirely empty, the other 
for the common herd, plainer and enshrining a bird's egg. 
Knowing in advance that his lieges would be forsworn, he 
thus piously sought to save them from sin in spite of them- 
selves, and his monkish panegyrist is delighted in recounting 
this holy deceit.^ 

It was easy, from a belief such as this, to draw the deduc- 
tion that when an oath was sworn on relics of peculiar sanc- 
tity, immediate punishment would follow perjury; and thus 
it followed that some shrines obtained a reputation which 
caused them to be resorted to in the settlement of disputed 
judicial questions. Even as early as St. Augustine there are 
traces of such practices, which that Father of the Church 
not only records, but imitated,^ and at a later period the 
legends are numerous which record how the perjured sinner 
was stricken down senseless or rendered rigid and motion- 
less in the act of swearing falsely.^ The profit which the 
church derived from thus administering oaths on relics 
affords an easy explanation of her teachings, and of the ex- 
tension of these practices. Their resultant advantages are 
well illustrated by the example of the holy taper of Cardigan, 
in Wales. A miraculous image of the Virgin was cast 
ashore, bearing this taper burning in her hand. A church 
was built for it, and the taper "contynued styll burnynge 
the space of nyne yeres, without wastynge, until the tyme 
that one forsware himselfe thereon, so then it extincted, and 
never burned after." At the suppression of the house under 
Henry VHI., the prior, Thomas Hore, testified: "Item, 

» Helgaldi Vit. Roberti Regis. 

2 Augustin. Epist. 78, §| 2, 3. (Ed. Benedict.) 

3 Gregor. Turon. de Gloria Martyr, cap. 58, 103. 



CONJURATORS. 31 

that since the ceasynge of burnyiige of the sayd taper, it was 
enclosed and taken for a greate relyque, and so worshipped 
and kyssed of pylgremes, and used of men to sweare by in 
difficill and harde matters, whereof the advauntage ad- 
mounted to greate sommes of money in tymes passed, pay- 
enge yerely to the same XXti nobles for a pencion unto 
thabbott of Chersey."^ 

CONJURATORS, OR PARTAKERS IN THE OATH. 

Notwithstanding the earnestness with which these teachings 
were enforced, it may readily be believed that the wild bar- 
barian, who was clamoring for the restoration of stolen 
cattle, or the angry relatives, eager to share the wer-gild of 
some murdered kinsman, would scarcely submit to be 
balked of their rights at the cost of simple perjury on the 
part of the criminal. We have seen that both before and 
after their conversion to Christianity they iiad little scruple 
in defiling the most sacred sanctions of the oath with cunning 
fraud, and they could repose little confidence in the most 
elaborate devices which superstition could invent to render 
perjury more to be dreaded than defeat. It was therefore 
natural that they should perpetuate an ancestral custom, 
which had arisen from the structure of their society, and 
which derived its guarantee from the solidarity of families 
alluded to above. This was the remarkable custom which 
was subsequently known as canonical compurgation, and 
which long remained a part of English jurisprudence, under 

I Suppression of Monasteries, p. i86. (Camden Soc. Pub.) The 
Priory of Cardigan was dependent upon the Abbey of Chertsey, and the 
sum named was apparently the abbot's share of the annual spoils. 

Perhaps the most suggestive illustration of the reverence for relics is a 
passage in the ancient Welsh laws limiting the protection legally afforded 
by them — " If a person have relics upon him and does an illegal act under 
the relics, he is not to have protection or defence through those relics, for 
he has not deserved it." — Venedotian Code, Bk. I. chap. x. ^ 7. 



32 THE WAGER OF LAW. 

the name of the Wager of Law. The defendant, when de- 
nying the allegation under oath, appeared surrounded by 
a number of companions — juratores, conjuratores, sacra- 
mentales, collaiidantes, compurgator es, as they were variously 
termed — who swore, not to their knowledge of the facts, 
but as sharers and partakers m the oath of denial. 

This curious form of procedure derives importance from 
the fact that it is an expression of the. character, not of an 
isolated sept, but of nearly all the races that have moulded 
the destinies of Europe. The Ostrogoths in Italy, and the 
Wisigoths of the south of France and Spain were the only 
nations in whose extant codes it occupies no place, and they, 
as has already been remarked, at an early period yielded 
themselves completely to the influence of the Roman civili- 
zation. On the other hand, the Salians, the Ripuarians, the 
Alamanni, the Baioarians, the Lombards, the Frisians, the 
Norsemen, the Saxons, the Angli and Werini, the Anglo- 
Saxons, and the Welsh, races whose common origin must be 
sought in the remotest past, all gave to this form of purga- 
tion a prominent position in their jurisprudence, and it may 
be said to have reigned from Southern Italy to Scotland. 

The custom was anterior to the settlement of the barba- 
rians in the Roman provinces. The earliest text of the 
Salic law presents us with the usages of the Franks unaltered 
by any allusions to Christianity, and it may therefore be 
presumed to date from a period not later than the conver- 
sion of Clovis. In this primitive code there are directions 
for the employment of conjurators, which show that the 
procedure was a settled and established form at that period.^ 
So in the Frisian law, which although compiled in the 
eighth century, still reveals pagan customs and the primitive 

' First Text of Pardessus, Tit. xxxix. \ 2, and Tit. xlii. \ 5 (Loi 
Salique, Paris, 1843, PP- ^i, 23). It is somewhat singular that in the 
subsequent recensions of the code the provision is omitted in these pas- 
sages. 



ANTIQUITY OF COMPURGATION. 33 

condition of society, the practice of compurgation evidently 
forms the basis of judicial proceedings. The Islands 
Landnamabok also exhibits it as a form of regular pro- 
cedure among the heathen Norsemen. Although the other 
codes have only reached us in revisions subsequent to the 
conversion of the several tribes, still, the universal use of 
the practice shows that its origin must be traced to a period 
anterior to their departure from the common seat of the 
Aryans in the farther East. 

The church, with the tact which distinguished her deal- 
ings with her new converts, was not long in adopting a 
system which was admirably suited for her defence in an age 
of brute force. As holy orders sundered all other ties, and 
as the church was regarded as one vast family, ecclesiastics 
speedily arrogated to themselves and obtained the privilege 
of having men of their own class as compurgators, and, thus 
fortified for mutual support, they, were aided in resisting the 
oppressors who invaded their rights on every hand. This 
claim, with all its attendant advantages, was fully conceded 
when Charlemagne, in the year 800, went to Rome for the 
purpose of trying Pope Leo III. on a grave charge, and in 
that august presence the Pontiff, whom no witnesses dared to 
accuse, cleared himself of the crimes imputed to him by 
solemnly taking the oath of denial in company with twelve 
priests as compurgators.^ Three years afterwards^ the Em- 
peror decreed that, in all doubtful cases, priests should defend 
themselves with three, five, or seven ecclesiastical compur- 

' Eginhard. Annal. ann. 800. — The monkish chroniclers have endeavored 
to conceal the fact that Leo underwent the form of trial like a common 
criminal, but the evidence is indubitable. Charlemagne alludes to it in 
the Capitularium Aquisgranense ann, 803, in a manner which admits of 
no dispute. 

The monk of St. Gall (De Gestis B. Carol. Mag. Lib. i. cap. 28), whose 
work is rather legendary in its character, describes the Pope as swearing to 
his innocence by his share at the day of judgment in the promises of the 
Gospels, which he had placed upon his head. 



34 THE WAGER OF LAW. 

gators, and he announced that this decision had been reached 
by the common consent of Pope, patriarchs, bishops, and 
all the faithful.^ It is true that a few months later, on being 
shown a decretal of Gregory 11.^ ordering the clergy to re- 
but with their single oaths all accusations unsupported by 
witnesses, he modified his previous command, and left the 
matter to the discretion of his prelates; but this had no prac- 
tical result. In 823, Pope Pascal I, was more than suspected 
of complicity in the murder of Theodore and Leo, two high 
dignitaries of the papal court. Desirous to avoid an investi- 
gation by the commissioners sent by Louis-le-Debonnaire, 
he hastily purged himself of the crime in anticipation of their 
arrival, by an oath taken with a number of bishops as his 
compurgators;^ and it is a striking example of the weight 

• Capit. Aquisgran. aim. 803, cap. vi.i. 

2 Bonifacii Epist. cxxvi. 

The su1)ject of the oaths of priests was one of considerable perplexity 
during the dark ages. Among the numerous privileges assumed by the 
sacerdotal body was exemption from the necessity of swearing, an exemp- 
tion which had the justification of the ancient Roman custom; " Sacerdo- 
tem, Vestalem, et Flaminem Dialem in omni mea jurisdictione jurare non 
cogam" (Edict. Perpet. ap. Aul. Gell. x. 15). The effort to obtain the 
reversion of this privilege dates from an early period, and was sometimes 
allowed and sometimes rejected by the secular authorities, both as respects 
promissory, judicial, and exculpatory oaths. The struggle between church 
and state on this subject is well exemplified in a case which occurred in 
1269 The Archbishop of Rheims sued a burgher of Chaudardre. When 
each party had to take the oath, the prelate demanded that his should be 
taken by his attorney. The defendant demurred to this, alleging that the 
archbishop had in person presented the complaint. Appeal was made to 
the Parlement of Paris, which decided that the defendant's logic was cor- 
rect, and that the personal oath of the prelate was requisite. (Olim, I. 

765.) 

In Spain, a bishop appearing in a secular court, either as plaintiff or 
defendant, was not exempt from the oath, but had the singular privilege 
of not being compelled to touch the Gospels on which he swore. — Siete 
Partidas, P. ill. Tit. xl. 1. 24. 

3 Eginhard. Annal. ann. 823. 



SELECTION OF COMPURGATORS. 35 

accorded to the procedure that, although the assumed fault 
of the victims had been their devotion to the imperial party, 
and though the Pope had by force of arms prevented any 
pursuit of the murderers, the Emperor was powerless to exact 
satisfaction, and there was nothing further to be done. Pope 
Pascal stood before the world an innocent man. 

It is true that, in the tenth century, Atto of Vercelli com- 
plains bitterly that a perverse generation refused to be satisfied 
with the single oath of an accused priest, and required him 
to be surrounded by compurgators of his class, ^ which that 
indignant sacerdotalist regarded as a grievous wrong. As 
the priesthood, however, failed in obtaining the entire im- 
munity for which they strove during those turbulent times, 
the unquestioned advantages which compurgation afforded 
recommended it to them with constantly increasing force. 
Forbidden at length to employ the duel in settling their dif- 
ferences, and endeavoring, in the eleventh and twelfth cen- 
turies, to obtain exemption from the ordeal, they finally 
accepted compurgation as the special mode of trial adapted 
to members of the church, and for a long period we find 
it recognized as such in all the collections of canons and 
writings of ecclesiastical jurists."^ From this fact it obtained 
its appellation of '* purgatio canonica," or canonical com- 
purgation. 

SELECTION OF COMPURGATORS. 

As already remarked, the origin of the custom is to be 
traced to the principle of the unity of families. As the 
offender could summon his kindred around him to resist an 
armed attack of the injured party, so he took them with him 
to the court, to defend him with their oaths. Accordingly, 
we find that the service was usually performed by the kindred, 
and in some codes this is even prescribed by law, though not 

' Atton, de Pressuris Ecclesiat. P. i. 

2 Buchardus, Ivo, Gratianus, passim. — Ivon. Epist. 74. 



36 THE WAGER OF LAW. 

universally.^ This is well illustrated in the Welsh laws, 
where the '^raith," or compurgation, was the basis of almost 
all procedure, and where consequently the system was 
brought to its fullest perfection. Complicated rules existed 
as to the proportion of paternal and maternal kindred 
required in various cases, and the connection between the 
wer-gild and the obligation of swearing in defence of a kins- 
man was fully recognized — "Because the law adjudges the 
men nearest in worth in every case, excepting where there 
shall be men under vows to deny murder," therefore the 
compurgators were required to be those ''nearest to obtain 
his worth if killed.''^ Under these circumstances, the raiih- 
man could be objected to on the score of not being of kin, 
when the oaths of himself and his principal were received 
as sufficient proof of relationship;^ and the "alltud," or 
foreigner, was not entitled to the raith unless he had kindred 
to serve on it.* How the custom sometimes worked in prac- 
tice among the untameable barbarians is fairly illustrated by 
a case recounted by Aimoin as occurring under Chilperic.I. 

* L. Longobard. Lib. ii. Tit. xxi. | 9; Tit. Iv. \ 12. — L. Burgund. Tit. 
vii. — Laws of Elhelred, Tit. ix. ^| 23, 24. — L. Henrici I. cap. Ixxiv. \ I. 
Feudor. Lib. v. Tit. ii. 

This point affords an illustration of the divergent customs of the Latin 
and Teutonic races. The Roman law exercised great discrimination in 
admitting the evidence of a relative to either -party in an action (Pauli 
Sentent. Lib. v. Tit. xv. — LI. 4, 5, 6,9. Dig. xxii. v.). The Wisigoths 
not only adopted this principle, but carried it so far as to exclude the 
evidence of a kinsman in a cause between his relative and a stranger (L. 
Wisigoth. Lib. II. Tit. iv. c. 12), which was adopted into the Carlovingian 
legislation (Benedict. Levit. Capitul. Lib. vi. c. 348) under the strong 
Romanizing influence which then prevailed. The rule, once established, 
retained its place throvigh the vicissitudes of the feudal and customary law 
(Beaumanoir, Coutumes du Beauvoisis, cap. xxxix. \ 38. — Cout. de Bre- 
tagne, Tit. vii. art. 161, 162). 

2 Anomalous Laws, Bk. ix. chap. ii. \\; chap. v. \ 2. (Owen, II. 225, 
233.) This collection of laws is posterior to the year 1430. 

3 Anomalous Laws, Bk. v. chap. ii. \ 117 (Ibid. II. p. 85). 

4 Ibid. I 144 (p. 95). 



KINSMEN AS CONJURATORS. 37 

in the latter half of the sixth century. A wife suspected by 
her husband offered the oath of purgation on the altar of St. 
Denis with her relatives, who were persuaded of her inno- 
cence; the husband not yet satisfied, accused the compurg- 
ators of perjury, and the fierce passions of both parties 
becoming excited, weapons were speedily drawn, and the 
sanctity of the venerable church was profaned with blood. ^ 

It was manifestly impossible, however, to enforce the rule 
of kinship in all cases, for the number of compurgators 
varied in the different codes, and in all of them a great 
number were required when the matter at stake was large, or 
the crime or criminal important. Thus when Chilperic I. 
was assassinated in 584, doubts were entertained as to the 
legitimacy of his son Clotair, an infant of four months — 
doubts which neither the character of Queen Fredegonda 
nor the manner of Chilperic' s death had any tendency to 
lessen ; and Gontran, brother of the murdered king, did not 
hesitate to express his belief that the royal child's paternity 
was traceable to some one of the minions of the court, a 
belief doubtless stimulated by the promise it afforded him of 
another crown. Fredegonda, however, repaired her some- 
what questionable reputation and secured the throne to her 
offspring, by ai)pearing at the altar with three bishops and 
three hundred nobles, who all swore with her as to the 
legitimacy of the little prince, and no further doubts were 
ventured on the delicate subject.'^ A similar case occurred 
in Germany in 899, when Queen Uta cleared herself of an 
accusation of infidelity, by taking a purgatorial oath with 
eighty-two nobles.^ So in 824, a dispute between Hubert, 
Bishop of Worcester, and the Abbey of Berkeley, concerning 
the monastery of Westbury, was settled by the oath of the 
bishop, supported by those of fifty mass-priests, ten deacons, 

^ Aimoini Lib. iii. c. 29. * Greg. Turon. Lib. viil. c. 9. 

^ Herman. Contract, ann. 8qq. 



38 THEWAGEROFLAW. 

and a hundred and fifty other ecclesiastics.^ These were, per- 
haps, exceptional instances, but in Wales the law required, as a 
regular matter, enormous numbers of compurgators in many 
cases. Privity to homicide, for instance, was divided into 
three triads, or nine classes of various degrees of guilt. Of 
these, the first triad called for one hundred raithmen to 
establish the denial; the second triad, 200, and the third, 
300;'-' while, to rebut an accusation of killing with savage 
violence or poisoning, the enormous number of six hundred 
compurgators was considered necessary.^ Even these armies 
of oath-takers did not widen the circle from which selection 
was allowed, for the law absolutely specifies that ''the oaths 
of three hundred men of a kindred are required to deny 
murder, blood, and wound, "^ and the possibility of finding 
them is only explicable by the system of tribes or clans in 
which all were legally related one to another. This is illus- 
trated by a further regulation, according to which, under the 
Gwentian code, in an accusation of theft, with positive evi- 
dence, the thief was directed to clear himself with twenty- 
four raithmen of his own cantrev or district, in equal number 
from each cymwd or sub-district.^ 

Under a different social organization, it is evidently im- 
possible that a kindred sufficiently large could have been 
assembled in the most numerous families, and even when 
the requirements were more reasonable, the same difficulty 
must frequently have occurred. This is recognized in the 
Danish laws of the thirteenth and fourteenth centuries, where 

J Spelman. Concil. I. 335. 

2 Venedotian Code, Book ill, chap, i. ^\ i-io. — Dimetian and Gwen- 
tian Codes, Book ii. chap, i. W 10-12. (Owen I. 219-21, 407, 689 ) — 
There is very great confusion in these laws as to the numbers requisite for 
many crimes, but with respect to the accessories of " galanas," or homicide, 
the rule appears to have been absolute. — Cf, Spelman, Glossary s, v, Assath. 

3 Venedotian Code, Book III. chap, i. | 18, Anomalous Laws, Book iv. 
chap. iii. U 12, 13 (Ibid. I. 231, II. 23). 

" Ibid. I 17 (p. 231); cf. Book II. chap, viii, ^ 4 (p, 137). 
5 Gwentian Code, Book ii. chap. iii. | ii. (Ibid. I. 691). 



KINSMEN AS CON J URATORS. 39 

the conjuratorial oaths of kindred, known as neffn i kyn, were 
requisite, unless the accused could swear that he had no rela- 
tions, in which case he was allowed to produce twelve other 
men of proper character, lag feste men} Thus the aid of those 
not connected by ties of blood must often have been neces- 
sary, and as it was a service not without danger, as we shall 
see hereafter, it is not easy to understand how the requisite 
number was reached. In certain cases, no doubt, the possi- 
bility of obtaining those not bound by kindred to undertake 
the office is traceable to the liability which in some instances 
rested upon a township for crime committed within its bor- 
ders;"'* while the system of guilds in which the members 

' Leg. Cimbric. Lib. II. c. 9. — Constit. Woldemari Regis W 9, 52, 56, 
86. Throughout Germany a minor son could be cleared, even in capital 
accusations, by the single purgatorial oath of his father, if it was the first 
time that they had been defendants in court. Jur. Provin. Alaman. cap. 
clxix. \ I, Sachsische Weichbild, art. 76. 

2 This has been denied by those who assume that the frithborgs of Ed- 
ward the Confessor are the earliest instance of such institutions, but traces 
of communal societies are to be found in the most ancient text of the Salic 
law (First text of Pardessus, Tit. XLV. ), and both Childebert and Clotair II., 
in edicts promulgated near the close of the sixth century, hold the hun- 
dreds or townshijjs responsible for robberies committed within their limits 
(Decret. Childeberti ann. 595, c. 10 — Decret. Chlotarii II. c. i). 

It is not improbable that, as among all the barbarian races, the family 
was liable for the misdeeds of its members, so the tribe or clan of the 
offender was held responsible when the offence was committed upon a 
member of another tribe, and such edicts as those of Childebert and Clo- 
tair were merely adaptations of the rule to the existing condition of society. 
The most perfect early code that has reached us, that of the ancient Irish, 
expresses in detail the responsibility of each sept for the actions not only 
of its members, but of those also who were in any way connected with it. 
" And because the four nearest tribes bear the crimes of each kinsman of 
their stock. . . . And because there are four who have an interest in every 
one who sues and is sued: the tribe of the father, the chief, the church, 
the tribe of the mother or foster-father. . . . Every tribe is liable after the 
absconding of a member of it, after notice, after warning, and after lawful 
waiting."— Senchus Mor, I. 263-5. 



40 THE WAGER OF LAW. 

shared with each other a responsibility resembling that of. 
kinship rendered participation in the oath of denial almost 
a necessity when a comrade was prosecuted.^ 

It would be endless to specify all the variations in the 
numbers required by the different codes in all imaginable 
cases of quarrel between every class of society. Numerous 
elements entered into these regulations; the nature of the 
crime or claim, the station of the parties, the rank of the 
compurgators, and the mode by which they were selected. 
Thus, in the simplest and most ancient form, the Salic law 
merely specifies twenty-five compurgators to be equally 
chosen by both parties.^ Some formulas of Marculfus specify 
three freeholders and twelve friends of the accused.^ A 
Merovingian edict of 593 directs the employment of three 
peers of the defendant, with three others chosen for the pur- 
pose, probably by the court. ^ Alternative numbers, however, 
soon make their appearance, depending upon the manner in 
which the men were chosen. Thus among the Alamanni, on 
atrial for murder, the accused was obliged to secuie the sup- 
port of twenty designated men, or, if he brought such as he 
had selected himself, the number was increased to eighty.^ 
So, in a capitulary of 803, Charlemagne prescribes seven 
chosen conjurators, or twelve if taken at random,^ a rule 
which is virtually the s^me as that laid down by the Emperor 
Henry III. in the middle of the eleventh century.^ In 

' See Mr. Pike's very interesting " History of Crime in England," Vol. 
I. pp. 61-2. London, 1873. 

2 First text of Pardessus, Tit. xlii. g 5. 

3 Marculf. App. xxxii. ; xxix, 

4 Pact, pro Tenore Pacis cap. vi. 

2 L. Alaman. Tit. Ixxvi. So in 922 the Council of Coblentz directed 
that accusations of sacrilege could be rebutted with " XXIV totis nominatis 
atque electis viris . . . aut aliis non nominatis tamen ingenuis LXXII." 
(Hartzheim Concil. German. 11, 600.) 

6 Capit. Car. Mag. iv. ann, 803, cap. x. 

7 Goldast. Constit. Imp. I. 231. 



NUMBERS REQUIRED. 41 

Bigorre the law thus discrhninated against the cagots — a 
wandering race of uncertain origin — for cases in which the 
oaths of seven conjurators ordinarily sufficed required thirty 
cagots, when the latter were called upon to act.^ In an 
English record of the fifteenth century we find a defendant 
called upon to prove his innocence with six of his neighbors 
or twelve strangers.^ 

Variations likewise occur arising from the nature of the 
case and the character of the plaintiff. Thus in the Scottish 
law of the twelfth century, in a criminal charge, a man could 
defend himself against his lord with eleven men of good 
character, but if the king were the accuser, twenty four were 
requisite, who were all to be his peers, while in a civil case 
twelve were sufficient.^ So in the burgher laws of David I., 
ordinary cases between citizens were settled with ten con- 
jurators, but eleven were necessary if the king were a party, 
or if the matter involved the life, limb, or lands of one of 
the contestants; and in cases occurring between a citizen 
and a countryman, each party had to provide conjurators of 
his own class.* In the complicated rules for compurgation 
which form the basis of the Welsh jurisprudence, there are 
innumerable details of this nature. We have seen that for 
some crimes many hundred 7'aith-men were required, while 
similar numbers were enjoined in some civil suits respecting 
real property.^ From this the number diminishes in propor- 
tion to the gravity of the case, as is well illustrated by the 
provisions for denying the infliction of a bruise. If the mark 

' Lagreze, Hist, du Droit dans les Pyrenees, p. 47, Paris, 1867. 

2 Pike, op. cit. I. 451. 

3 Quoniam Attachiamenta cap. xxiv, W 1,4; cap. Ixxv. |^ I, 4. In 
another code of nearly the same period, in simple cases of theft, when the 
accuser had no testimony to substantiate his claim, thirty conjurators were 
necessary, of whom three must be nobles. — Regiam Majestatem Lib. iv. 
c. 21. 

* Leg. Burgorum cap. xxiv. ?| i, 3. 

= Anomalous Laws, Book xiii. chap. ii. | 94 (Owen IL 521)., 

4^ 



42 THE WAGER OF LAW. 

remained until the ninth day, the accused could deny it with 
"two persons of the same privilege as himself;" if it re- 
mained until the eighteenth day, the oaths of three conjura- 
tors were necessary; if till the twenty-seventh day, four 
raith-men were required.^ 

The character of the raith?nen also affected the number 
demanded. Thus, in a collection of Welsh laws of the 
fifteenth century there is an explanation of the apparent ano- 
maly that privity to theft or homicide required for its defence 
a vastly greater number of compurgators than the commis- 
sion of the crime itself. The large bodies prescribed for the 
former consisted simply of any men that could be had — of 
course within the recognized grades of kindred — while, for 
the latter, rules of varying complexity were laid down. 
Thus of the twenty-four required for theft, in some texts it 
is prescribed that two-thirds are to be of the nearest paternal 
kin, and one-third of the nearest maternal ; or, again, one- 
half nod-men^ vSo, in accusations of homicide, the same 
proportions of paternal and maternal kindred were required, 
all were to be proprietors in the country of the raith, and 
three, moreover, were to be men under vows of abstinence 
from linen, horses, and women, besides a proper proportion 
of nod-men} 
- Instances also occur in which the character of the defend- 

' Gwentian Code, Bk. II. chap. vii. \ lo (Ibid. I. 701). 

2 Anomalous Laws, Bk. ix. chap. ii. \ 4; chap. xx. \ 12; chap. xxi. \ 
3. — Book XIV. chap, xxxviii. \ 16. — Book v. chap. ii. \ 112 (Ibid. XL 
225, 261, 709, 83). 

Under the primitive Venedotian Code (Book iii. chap. i. \\ 13, 19) only 
twelve men were required, one-half to be nod-77ien, two-thirds of paternal, 
and one-third of maternal kin; M^hile in the Gwentian Code (Book II. 
chap. ii. \ 10) and in the Dimetian Code (Book li. chap. iii. \ 10, Book 
III. chap. i. \ 24), fifty are prescribed. 

The nod-men, as will be seen hereafter, were conjurators who took a 
special form of oath. 

3 Anomalous Laws, Book xiv. chap, xxxviii. ^16; Book ix. chap, xx, 
§ 12, chap. xxi. \ I. 



NUMBERS REQUIRED. 43 

ant regulated the number required. Among the Welsh, the 
laws of Hoel Dda provide that a wife accused of infidelity 
could disprove a first charge with seven women ; if her con- 
duct provoked a second investigation, she had to procure 
fourteen; w^iile, on a third trial, fifty female conjurators 
were requisite for her escape.^ Another application of the 
same principle is found in the provision that when a man 
confessed a portion of the crime imputed to him and denied 
the remainder, an augmented raith was required to support 
his denial, because it is more difficult to believe a man who 
has admitted his participation in a criminal act. Thus when 
only fifty men were requisite to rebut a charge of homicide, 
and the accused admitted one of the accessories to homicide, 
his denial of the main charge had to be substantiated by one 
hundred, two hundred, or three hundred men, according to 
the nature of the case. On the other hand, where no crim- 
inal act was concerned, confession of a portion diminished 
the raith for the remainder. Thus in a claim of suretyship, 
six compurgators were necessary to the defendant ; but if he 
admitted part of the suretyship, his unsupported oath was 
sufficient to rebut the remainder, as the admission of a por- 
tion rendered him worthy of belief.^ In the A]iglo- Saxon 
jurisprudence, \\\q frangens jusjttrandum^ as it was called, also 
grew to be an exceedingly complex system in the rules by 

1 Leges Wallice, Lib. ir. cap xxiii. \ 17 (Owen II. 848). It is worthy 
of remark that one of the few instructions for legal procedures contained in 
the Kor^n relates to cases of this kind. Chapter xxiv. 6-9 directs that a 
husband accusing his wife of infidelity, and having no witnesses to prove 
it, shall substantiate his assertion by swearing five times to the truth of the 
charge, invoking upon himself the malediction of God ; while the wife was 
able to rebut the accusation by the same process. As this chapter, how- 
ever, was revealed to the Prophet after he had writhed for a month under 
a charge brought against his favorite wife Ayesha, which he could not dis- 
regard and did not wish to entertain, the law is rather to be looked upon 
as ex post facto than as indicating any peculiar tendency of the age or race. 

2 Anomalous Laws, Book xi. chap. v. \\ 40, 41 (Ibid. II. 445). 



44 THEWAGEROFLAW. 

which the number and quality of the conjurators were regu- 
lated according to the nature of the crime and the rank of 
the accused. In cases of peculiar atrocity, such as violation 
of the sanctity of the grave, only thanes were esteemed com- 
petent to appear.^ In fact, among the Anglo-Saxons, the 
value of a man's oath was rated according to his rank, that 
of a thane, for instance, being equal to those of seven yeo- 
men.^ The same peculiarity is observable among the Fris- 
ians, whose laws required that compurgators should be of 
the same class as their principal, and the lower his position 
in the State, the larger was the number requisite.^ 

Equally various were the modes adopted for the selection 
of compurgators. Among the untutored barbarians, doubt- 
less, the custom was originally universal that the defendant 
procured the requisite number of members of his legal family, 
whose oaths were sufficient for his discharge. Even to a com- 
paratively late period this prevailed extensively, and its evils 
were forcibly pointed out by Hincmar in the ninth century. 
In objecting to admit the purgation of an offending priest with 
ecclesiastics of his own choice, he states that evil-minded 
men combined together to defeat justice and secure immu- 

' Wealreaf, i. e. morUuim refere, est opus nithingi; si quis hoc negare 
velit, faciat hoc cum xlviii. taynis plene nobilibus. — Leg. yEthelstani, de 
Ordalio. 

2 Sacramentum liberalis hominis, quern quidem vocant twelfJundetnan, 
debet stare et valere juramentum septem villanorum. (Cnuti Secular, cap. 
127.) T\x& twelf/ie7ide?nan meant a thane (Twelfhindus est homo plene 
nobilis i. Thainus. — Leg. Henrici L Tit. Ixxvi. \ 4), whose price was 
1200 solidi. So thoroughly did the structure of jurisprudence depend 
upon the system of wer-gild or composition, that the various classes of 
society were named according to the value of their heads. Thus the villein 
or cheidetnan was also called tivyhindus or tzvyhindeinan, his wer-gild 
being 200 solidi ; the radcnicht (road-knight, or mounted follower) was a 
sexhendeman ; and the comparative judicial weight of their oaths followed 
a similar scale of valuation, which was in force even subsequently to the 
Conquest. (Leg. Henrici I. Tit. Ixiv. § 2.) 

3 L. Frision. Tit. I. 



SELECTION OF CO M PU RG ATO P S . 45 

nity for their crimes by serving each other in turn, so that 
when the accused insisted on offering his companions to the 
oath, it was necessary to make them undergo the ordeal to 
prove their sincerity.^ His expressions show that the ques- 
tion of selection at that time was undecided in France, and 
the alternative numbers alluded to above prove that efforts 
had been made to remove the difficulty without success. 
Other nations, however, met the question more decidedly. 
The original Lombard law of King Rotharis gave to the 
plaintiff the privilege of naming a majority of the compurg- 
ators, the remainder being, chosen by the defendant,^ but 
even in this the solidarity of the family was recognized, since 
it was the duty of the plaintiff to select the nearest relatives 
of his adversary, provided they were not personally hostile 
to the accused.^ This same spirit is shown even so late as 
iri6, in a charter by which Baldwin VII. of Flanders grati- 
fied the citizens of Ypres by substituting among them the 
process of comj^urgation for the ordeal and battle trial. 
According to this the accuser selected four of the relatives of 
the accused to take the purgatorial oath ; if they refused 
through known enmity, he was bound to select four other of 
the kindred, and if none such were to be found then four 
legal men sufficed.* The English law was the first to educe 
a rational mode of trial from the absurdity of the barbaric 
traditions, and there the process finally assumed a form 
which occasionally bears a striking resemblance to trial by 
jury — in fact, it insensibly runs into the latter, to which it 
probably gave rise. By the laws of Canute, in some cases, 
fourteen men were named to the defendant, among whom he 
was obliged to find eleven willing to take the purgatorial 

' Hincmari Epist. xxxiv. So also in his Capit. Synod, ann. 852, li. 

XXV. 

2 L. Longobard. Lib. ii. Tit. Iv. ^ 5. 

3 Ibid. Tit. xxi. I 9. 

4 Proost, Recherches sur la Legislation des Jugements de Dieu, Erux- 
elles, 1868, p. 96. 



46 T H E W A G E R O F L A W . 

oath with him.^ The selection of these virtual jurors was 
probably made by the gerefa, or sheriff;''^ they could be 
challenged for suspicion of partiality or other competent 
cause, and were liable to rejection unless unexceptionable in 
every particular.^ Very similar to this was the stockiieffn of 
the ancient Danish law, by which, in cases where the rela- 
tives were not called upon, thirteen men were chosen, a 
majority of whom could clear the accused by taking the oath 
with him. They were nominated by a person appointed for 
the purpose, and if the court neglected this duty, the privi- 
lege enured to the plaintiff.* 

The Northern nations were evidently less disposed to favor 
the accused than the Southern. In Sweden and Denmark, 
another regulation provides that although the defendant had 
a right to demand this mode of purgation, yet the plaintiff 
had the selection of the twelve men who served as conjura- 
tors ; three of these the accused could challenge for enmity, 
but their places were supplied by the plaintiff.^ The evan- 
escent code compiled for Norway and Iceland by Haco 
Haconsen and his son Magnus, towards the close of the thir- 
teenth century, is more equitable in its provisions. Though 
it leaves the nomination of the conjurators to the defendant, 
the choice is subject to limitations which placed it virtually 
in the power of the court. They were required to be men 

' Nominentur ei XIV,, et adquirat XI,, et ipse sit duodecimus. — L. 
Cnuti c, Ixvi. Horne, who probably lived in the reign of Edward II,, 
attributes to Glanville the introduction of the jury-trial. — ''Car, pur les 
grandes malices que Ion soloit procurer en testmonage et les grandes delaies 
qui se fierent en les examinements, exceptions et attestations, ordeina 
Randulph de Glanvile celie certeine Assise ou recognitions et juries se 
feissent per XII jurors, les procheins vicines, et issint est cest establisse- 
ment appel^ assise." — Myrror of Justice, cap. ii. sect. xxv. 

2 Laws of Ethelred, Tit. in. c, xiii. 

3 L. Henrici I. Tit. xxxi. I 8; Tit. Ixvi. \ lo. 
* Constit. Woldemari Regis, W lii. Ixxii, 

5 L. Scaniae Lib, vii, c. 8, — Chart. Woldemari Regis, ann, 1163, (Du- 
Cange s. v. Juramentum.) 



SELECTION OF CONJURATORS. 47 

of the vicinage, of good repute, peers of the accused, and in 
no way connected with him by blood or other ties.^ The 
more lasting code promulgated at the same time by Magnus 
for his Norwegian dominions, a code which became the 
common law of Norway for 500 years, provides, for cases in 
which eleven conjurators are required, that seven of them 
shall be selected of intelligent men of full age, in no way 
related to the accused, yet residents of the vicinage, and 
acquainted with the facts ; the accused can then add four 
more of good character, himself making the twelfth.^ We 
see here, as in the English jurisprudence, how nearly the 
conjuratorial process approaches to the jury-trial. 

Such care in the selection of those on whom duties so 
responsible devolved did not prevail among the more South- 
ern races at an earlier age. Among the Lombards slaves 
and women in tutelage were often employed.^ The Burgun- 
dians required that the wife and children, or, in their ab- 
sence, the father and mother of the accused should assist in 
making up the number of twelve,* the object being evidently 
to increase the responsibility of the family for the actions of 
its head. The abuses of this custom, however, caused its 
prohibition under Charlemagne for the reason that it led to 
the swearing of children of tender and irresponsible age.^ 
That legislator, however, contented himself with forbidding 
those who had once been convicted of perjury from again 
appearing either as witnesses or conjurators;^ and the little 
care that was deemed necessary in their selection under the 
Carlovingian jurisprudence is shown by a law of Louis-le- 
Debonnaire ordering that landless freemen should be allowed 
to serve as conjurators, though ineligible as witnesses.^ A 

J Jarnsida, Thiofa-Balkr, cap. ix, x. 

2 Leges Gulathingenses, Thiofa-Bolkr, c. xiii. (Ed. Havniae 181 7, p. 
547-) 

3 L. Longobard. I. xxxiii. I, 3. < L. Burgund. Tit. viii. 
5 Capit. Car, Mag. I. aim, 789 c. Ixii. 5 ibid, 

^ Capit. Ludov, Pii ami. 829 Tit. in. | vi. 



48 THEWAGEROFLAW. 

truer conception of the course of justice is manifested, some 
centuries later, by the Bearnese legislation, which required 
that the seguidors or conjurators, as well as the testinionis or 
witnesses should be men able to pay the amount at stake, 
together with the fine incurred by the losing party,^ or that 
they should be fair and loyal men, not swayed by enmity.^ 

CONDITIONS OF COMPURGATION. 

There has been much discussion as to the conditions under 
M^hich resort was had to this mode of deciding litigation. 
Some authors assume that, in the early period, before the 
ferocious purity of the German character had become adul- 
terated with the remains of Roman civilization, it was used 
in all descriptions of cases, at the option of the defendant, 
and was in itself a full and satisfactory proof, received on all 
hands as equal to any other. ^ The only indication that I 
have met with, among the races of Teutonic stock, tending 
to the support of such a conjecture, occurs in the Lombard 
code, where Rotharis, the earliest compiler of written laws, 
abolishes a previously existing privilege of denying under 
oath a crime after it had been confessed.* A much more 
powerful argument on the other side, however, is derivable 
from the earliest text of the Salic law, to which reference has 
already been made. In this, the formula shows clearly that 
conjurators were only employed in default of other testi- 

• For. de Morlaas, Rubr. xli. art. 146-7. 

2 Que sien boos et loyaus, et que no sien enemicxs. — Fors de Beam, 
Rubr. XXX. 

3 Konigswarter, Etudes Historiques, p. 167. 

4 Nam nulli liceat, postquam manifestaverit, postea per sacramentum 
negare, quod non sit culpabilis, postquam ille se culpabilem assignavit. 
Quia multos cognovimus in regno nostro tales pravas opponentes inten- 
tiones, et hsec moverunt nos praesentem corrigere legem, et ad meliorem 
statum revocare. — L. Longobard. Lib. 11. Tit. Iv. \ 8. 



CONDITIONS OF ITS USE. 49 



mony ;^ and what lends additional force to the conclusion is 
that this direction disappears in subsequent revisions of the 
law, wdierein the influences of Christianity and of Roman 
civilization are fully apparent. No safe deductions, indeed, 
can be drawn from mere omissions to specify that the ab- 
sence of witnesses was necessary, for these ancient codes are 
drawn up in the rudest manner, and regulations which might 
safely be presumed to be familiar to every one would not, in 
their curt and barbarous sentences, be repeated with the 
careful redundancy of verbiage which marks our modern 
statutes. Thus there is a passage in the code of the Ala- 
manni which declares in the most absolute form that if a 
man commits a murder and desires to deny it, he can clear 
himself with twelve conjurators.^ This, by itself, would 
authorize the assumption that compurgation was allowed to 
override the clearest and most convincing testimony, yet it 
is merely a careless form of expression, for another section 
of the same code expressly provides that where a fact is 
proved by competent witnesses the defendant shall not have 
the privilege of producing compurgators.^ 

It therefore seems evident that, even in the earliest times, 
this mode of proof was only an expedient resorted to in 
doubtful matters, and on the necessity of its use the rachin- 
borgs or judges probably decided. A case recorded in the 
Landnamabok certainly shows that among the heathen 
Norsemen the Godi or priest judge had this power, for when 
Thorbiorn Digre prosecuted Thorarin of Mafahlid for horse- 
stealing, and demanded that he should produce twelve con- 

1 Si quis hominem ingenue plagiaverit et probatio certa non fuit, sicut 
pro occiso juratoi-e donet. Si juratores non potuerit invenire, VIII M 
dinarios, qui faciunt solidos CC, culpabilis judicetur. — Tit. xxxix. \ 2. A 
similar provision — "si tamen probatio certa non fuerit" — occurs in Tit. 
xlii. I 5. 

2 Si quis hominem occiderit et negare voluerit, cum duodecim nominatis 
juret. — L. Alaman. Tit. Lxxxix. 

L. Alaman. Tit. XLli, 

5 



50 THE WAGER OF LAW. 

jurators, Arnkell, the Godi, decided that the plaintiff might 
clear himself with his simple oath on the holy ring of the 
altar, and thus the prosecution came to naught except as 
leading to a bloody feud.^ That this discretion was lodged 
in the court in subsequent times is generally admitted. It is 
scarcely worth while to multiply proof; but a few references 
will show the light in which the custom was regarded.^ 

' Islands Landtiamabok ii, ix (p. 83). 

2 For instance, in the Raioarian law — "Nee facile ad sacramenta veni- 
atur, ... In his vero causis sacramenta preestentur in quibus nullam pro- 
bationem discussio judicantis invenerit." (L. Baioar. Tit. viii. c. 16.) In 
a Capitulary of Louis-le-Debonnaire — "Si hujus facti testes non habuerit 
cum duodecim conjuratoribus legitimis per sacramentum adfirmet." (Capit. 
Ludov. Pii ann. 819, | i.) In one of the Emperor Lothair — ''Si testes 
habere non poterit, concedimus ut cum XII. juratoribus juret." (L. Long- 
obard. Lib. I. Tit. ix. | 37.) So Louis II. , in 854, ordered that a man 
accused of harboring robbers, if taken in the act, was to be immediately 
punished; but if merely cited on popular rumor, he was at liberty to clear 
himself with twelve compurgators (Recess. Ticinen, Tit. ii. cap. 3.) 

It was the same in subsequent periods. The Scottish law of the twelfth 
century alludes to the absence of testimony as a necessary preliminary, but 
when an acquittal was once obtained in this manner, the accused seems to 
have been free from all subsequent proceedings, when inconvenient wit- 
nesses might perhaps turn up — " Et si hocmodo purgatus fuerit, absolvetur 
a petitione Regis in pos'terum." (Regiam Majestatem, Lib, iv. c, 21.) 
So, in the laws of Nieuport, granted by Philip of Alsace, Count of Flan- 
ders, in 1 163. "Et si hoc scabini vel opidani non cognoverint, conquer- 
ens cum juramento querelam suam sequeter, et alter se excusabit juramento 
quinque hominum." (Leg. secundae Noviportus.) See also the Consue- 
tud. Tornacens. ann, 1187 | xvi (D'Achery, Spicileg. Ill, 552), The 
legislation of Norway and Iceland in the next century is even more posi- 
tive. " lis tantum concessis quae legum codices sanciunt, juramenta nenape 
purgatoria et accusatoria, ubi legitimi defuerint testes," (Jarnsida, Mann- 
helge, cap. xxxvii.) 

On the other hand, an exception to this general principle is apparently 
found in a constitution of the Emperor Henry III., issued about the mid- 
dle of the eleventh century. " Si quern ex his dominus suus accusaverit 
de quacunque re, licet illi juramento se cum suis coaequalibus absolvere, 
exceptis tribus : hoc est si in vitam domini sui, aut in cameram ejus con- 



CONDITIONS OF ITS USE. 5I 

The Welsh, however, were exceptional in this respect. 
The raith was the corner-stone of their system of jurispru- 
dence. It was applied to almost all actions, whether of civil 
or criminal law, and even cases of doubtful paternity were 
settled by it, no woman, except one ''of bush and brake" 
who had no legal kindred, being allowed to give testimony 
or take an oath with respect to the paternity of her illegiti- 
mate child. ^ It excluded and superseded all other proce- 
dures. If the accused declined to take the oath of denial, 
then testimony on both sides could be introduced, and the 
case be settled on the evidence adduced;'^ but where he 
chose to abide by the faith, the Book of Cynog formally 
declares that '^Evidences are not to be brought as to galajias 
[homicide], nor saraad [insults], nor blood, nor wound, nor 
ferocious acts, nor waylaying, nor burning buildings, nor 
theft, nor surety, nor open assault, nor adultery, nor vio- 
lence, nor in a case where guardians should be, nor in a case 
where an established raith is appointed by law ; because evi- 
dences are not to extinguish a raith. "^ Indeed, the only 
case which I have found wherein it was refused is where a 
priest of the same parish as one accused of theft testifies to 
have seen him in open daylight with the article stolen in his 
possession, when apparently the sacred character of the wit- 
ness precludes a denial on the part of the defendant."^ 

Among other races confidence in its ability to supplement 
absent or deficient testimony was manifested in another 

silium habuisse arguitur, aut in munitiones ejus. Cseteris vero hominibus 
de quacunque objectione, absque advocate, cum suis cosequalibus juramento 
se poterit absolvere," (Goldast. Constit. Imp. I. 231.) 

1 Gwentian Code, Book II. chap, xxxix. \ 40 (Owen I. 787). So, in 
disowning a child, if the reputed father were dead, the oaths of the chief 
of the kindred, with seven of the kinsmen, were decisive, or, in default of 
the chief, the oaths of fifty kinsmen (Ibid. \ 41). 

^ Anomalous Laws, Book ix. chap. ii. \ 9 (Ibid. II. 227). 

3 Ibid. Book viii. chap. xi. | 31 (Ibid. II. 209). 

* Ibid, Book ix. chap, ii, \ 6 (Ibid, II. 227}. 



52 THE WAGER OF LAW. 

form — t\\Q jurainenfum supermortiium — which was employed 
by various nations, at wide intervals of time. Thus, in the 
earliest legislation of the Anglo-Saxons, we find that when 
the defendant or an important witness was dead, the oath 
which he would have taken or the deposition which he would 
have made was obtained by proceeding to his tomb, where 
a certain number of conjurators swore as to what he could or 
would have done if alive. ^ Two centuries later, the same 
custom is alluded to in the Welsh laws of Iloel Dda,^ and 
even as late as the thirteenth century it was still in force 
throughout Germany.^ 

The employment of compurgators, however, depended 
frequently upon the degree of crime alleged, or the amount 
at stake. Thus, in many codes, trivial offences or small 
claims were disposed of by the single oath of the defendant, 
while more important cases required compurgators, whose 
numbers increased with the magnitude of the matter in ques- 
tion. This principle is fairly illustrated in a charter granted 
to the Venetians in the year mi by Henry V. In suits 
which involved only the value of a silver pound, the oath of 
the party was sufficient j but if the claim amounted to twelve 
pounds or more, then twelve chosen men were requisite to 
substantiate the oath of negation.* 

In later times, compurgation was also sometimes used as 
an alternative when circumstances prevented the employ- 
ment of other popular modes of deciding doubtful cases. 
Those, for instance, who would ordinarily be required to 
defend themselves by the wager of battle, were permitted 
by some codes to substitute the oaths of a certain number of 
conjurators, when precluded by advanced age from appear- 

1 Dooms of Ine, cap. liii. 

2 Leg. Wallice, Lib. ii. cap. xix. | 2 (Owen II. 842). 

3 Ea autem debita cle quibus non constat, super niortuum probari debent, 
septima manu. — Jur. Provin. Alaman. cap. vii. \ 2. (Ed. Schilter.) — 
Sachsische Weichbild art. 67. 

4 Liinig Cod. Ital. Diplom. II. 1955. 



FORMULAS AND PROCEDURE. 53 

ing in the arena. The burgher law of Scotland affords an 
example of this,^ though elsewhere such cases were usually 
settled by the substitution of champions. 

FORMULAS AND PROCEDURE. 

The primitive law-givers were too chary of words in their 
skeleton codes to embody in them the formula usually employ- 
ed for the compurgatorial oath. We have therefore no positive 
evidence of its nature in the earliest times; but as the forms 
made use of by several races at a somewhat later period have 
been preserved, and as they resemble each other in all essen- 
tial respects, we may reasonably assume that little variation 
had previously occurred. The most ancient that 1 have met 
with occurs in an Anglo-Saxon formulary which is supposed 
to date from about A.D. 900 : ''By the Lord, the oath is 
clean and unperjured which N. has sworn. "^ A century 
later, in a compilation of the Lombard law, it appears : 
"That which the accused has sworn is true, so help me 
God."^ The form specified in Beam, at a period somewhat 
subsequent, is curt and decisive: ''By these saints, he tells 
the truth;"* while the code in force in Normandy until the 
sixteenth century directs an oath identical in spirit: "The 
oath which William has sworn is true, so help me God and 
his saints."^ It will be observed that all these, while essen- 
tially distinct from the oath of a witness, are still unqualified 

1 Si burgensis calumniatus praeteriit setatem pugnandi, et hoc essoniaverit 
in sua responsiune, non pugnabit. Sed juramento duodecim talium qualis 
ipse fuerit, se purgabil. — L. Burgorum cap. 24, ^^ 1,2. 

2 On >one Drihten se a'S is claene and unmsene J>e N. swor, — Thorpe's 
Ancient Laws, I. 180-1. 

^ Hoc quod appellatus juravit, verum juravit. Sic Deus, elc. — Formul. 
Vet. in L. Longobard. (Georgisch, 1275.) 

•* Per aquetz santz ver dits. — P'ors de B^arn, Ruhr. i.i. art. 165. 

5 Du serment que Guillaume a jure, sauf serment a jure, ainsi m'aist 
Dieu et ses Sainctz. — Ancienne Cout. de Normandie, chap. Ixxxv. 
(Bourdot de Richebourg, IV. 54 ) 

5* 



54 THE WAGER OF LAW. 

assertions of the truth of the principal, and not mere asseve- 
rations of belief or protestations of confidence. The earliest 
departure from this positive affirmation, in secular jurispru- 
dence, occurs in the unsuccessful attempt at legislation for 
Norway and Iceland by Haco Haconsen in the thirteenth 
century. In this, the impropriety of such oaths is pointed 
out, and it is directed that in future the compurgator shall 
swear only, in confirmation of his principal, that he knows 
nothing to the contrary.^ In the similar code promulgated 
in 1274 by his son Magnus in Norway, it is directed that the 
accused shall take a full oath of denial, and the conjurators 
shall swear in the same words that his oath is true, a^nd that 
they know nothing truer. ^ 

We shall see that, before the custom fell into total disuse, 
the change which Haco vainly attempted, came to be gene- 
rally adopted, in consequence, principally, of the example 
set by the church. Even before this was formally promul- 
gated by the Popes, however, ecclesiastics occasionally 
showed that they were more careful as to what they swore, 
and at a comparatively early period they introduced the 
form of merely asserting their belief in the oath taken by 
their principal. Thus, in iioi, we find two bishops endea- 
voring to relieve a brother prelate from a charge of simony, 
and their compurgatorial oath ventures no further than " So 
help me God, I believe that Norgaud, Bishop of Autun, has 
sworn the truth. "^ 

1 Nobis adlisec Deo coram periculosiim esse vicletur, ejus, cujus interest, 
jusjurandum purgatorium edendo praeeunte, omnes (ab eo productos 
testes) iisdem ac ille conceptis verbis jurare, incerti quamvis fuerint, vera 
ne an falsa jurent. Nos legibus illatum volumus ut ille, cujus interest, 
jusjurandum conceptis verbis solum praestet, cseteri vero ejus firment jura- 
mentum adjicientes se nequid verius, Deo coram, scire, quam jurassent. — 
Jarnsida, Mannhelge, cap. xxxvii. — The passage is curious, as showing 
how little confidence was really felt in the purgation, notwithstanding the 
weight attached to it by law. 

2 Leges Gulathingenses, Thiofa-Bolkr, c. xiii. 

3 Credo Norigaudum istum Eduensem episcopum vera jurasse, sicut me 
Deus adjuvet. — Hugo. Flaviniac. Lib, li. 



FORMULAS. 55 

In the form of oath, however, as well as in so many other 
particulars, the Welsh had a more complicated system, pecu- 
liar to themselves. The ordinary 7-aith-man only was re- 
quired to take an oath "that it appears most likely to him 
that what he swears to is true." In many aggravated crimes, 
however, a certain proportion, generally one-half, had to be 
nod-men who were bound to a more stringent form, as the 
law specifies that "the oath of a nod-man is, to be in accord- 
ance with what is sworn by the criminal."^ The difference, 
as we have seen, in the numbers required when a portion 
were ?iodinen shows how much more difficult it was to find 
men willing to swear to an absolute denial, and how much 
more weight was attached to such a declaration than to the 
lax expression of opinion contained in the ordinary oath of 
the raith-man. 

Variations are likewise observable in the form of admin- 
istering the oath. Among the Alamanni, for instance, the 
compurgators laid their hands upon the altar, and the prin- 
cipal placed his hand over the others, repeating the oath 
alone ;^ while among the Lombards, a law of the Emperor 
Lothair directs that each shall take the oath separately.^ It 
was always, however, administered in a consecrated place, 
before delegates appointed by the judges trying the cause, 
sometimes on the altar and sometimes on relics. In the 
Welsh laws of the fifteenth century it is specified that all 
raiths shall be administered in the parish church of the de- 
fendant, before the priest shall have disrobed or distributed 
the sacramental bread.* At an earlier period a formula of 
Marculfus specifies the Capella S. Martini, or cope of St. 
Martin,^ one of the most venerated relics of the royal chapel, 

' Anomalous Laws, Book vii. chap i. \ 18 (Owen, II. 135). 
2 L. Alaman. Tit. vi. 3 L. Longobard. Lib. 11. Tit. Iv. I 28. 

1 Anomalous Laws, Book ix. chap. vi. ^4; chap. xvii. \ 5. — cf. Book 
VI. chap. i. \ 50 (OM'en. II. 235, 255, 113). 
5 Marculf, Lib. i. Formul. xxxviii. 



56 THE WAGER OF LAW. 

whence we may perhaps conclude that it was habitually- 
used for that purpose in the business of the royal Court of 
Appeals. 

Notwithstanding the universality of the custom, and the 
absolute character of the decisions reached by the process, 
it is easy to discern that the confidence reposed in it was of 
a very qualified character, even at an early period. The 
primitive law of the Frisians describes some whimsical pro- 
ceedings, prescribed for the purpose of determining the 
responsibility for a homicide committed in a crowd. The 
accuser was at liberty to select seven from among the par- 
ticipants of the brawl, and each of these was obliged to deny 
the crime with twelve conjurators. This did not absolve 
them, however, for each of them was also individually sub- 
jected to the ordeal, which finally decided as to his guilt or 
innocence. In this, the value of the compurgation was 
reduced to that of the merest technical ceremony, and yet a 
failure to procure the requisite number of supporters was 
tantamount to a conviction, while, to crown the absurdity of 
the whole, if any one succumbed in the ordeal, his conjura- 
tors were punished as perjurers.^ A similar want of confi- 
dence in the principle involved is shown by a reference in 
the Anglo-Saxon laws to the conjurators of an accused party 
being outsworn {ove7-cythed), when recourse was likewise 
had to the ordeal.''^ Among the heathen Norsemen, indeed, 
an offer by eitlier party to produce conjurators could always 
be met by the antagonist with a challenge to the duel, which 
at once superseded all other proceedings.^ As regards the 
church, although the authoritative use of compurgation 
among ecclesiastics would seem to demand for it among 
them implicit faith in its results, yet we have already seen 

' L. Frisioniim Tit. xiv. 

2 Dooms of King Edward, cap. iii. 

3 Keyser's Religion of the Northmen, Pennock's Transl. p. 246. 



CONFIDENCE REPOSED IN IT. 57 

that, in the ninth century, Hincmar did not hesitate to re- 
quire that in certain cases it should be confirmed by the 
ordeal ; and two centuries later, a remark of Ivo of Chartres 
implies a strong degree of doubt as to its efficacy. In relat- 
ing that Sanctio, Bishop-elect of Orleans, when accused of 
simony by a disappointed rival, took the oath of negation 
with seven compurgators, he adds that the accused thus 
cleared, himself as far as he could in the eyes of man.^ That 
the advantages it offered to the accused were duly appre- 
ciated, both by criminals and judges, is evident from the case 
of Manasses, Archbishop of Rheims. Charged with simony 
and other offences, after numerous tergiversations he was 
finally summoned for trial before the Council of Lyons, in 
1080. As a last effort to escape the impending doom, he 
secretly offered to Bishop Hugh, the Papal legate, the enor- 
mous sum of two hundred ounces of gold and other presents 
in hand, besides equally liberal prospective payments, if he 
could obtain the privilege of compurgation with six suffragan 
bishops. Gregory VII. was then waging too uncompromis- 
ing a war with the corroding abuse of simony for his lieu- 
tenant to yield to any bribe, however dazzling ; the proffer 
was spurned, Manasses confessed his guilt by absence, and 
was accordingly deposed.^ Instances like this, however, 
did not destroy confidence in the system, for, some sixty 
years later, we find Innocent II. ordering the Bishop of 
Trent, when similarly accused of simony, to clear himself 
with the oaths of two bishops and three abbots or monks. ^ 

The comparative value attached to the oaths of conjura- 
tors is illustrated by the provisions which are occasionally 
met with, regulating the cases in which they were employed 
in default of witnesses, or in opposition to them. Thus, in 
the Baioarian law, the oath of one competent witness is con- 

' Quantum in conspectu hominum purgari poterat. — I von. Epist. liv. 
2 Hugo Flaviniac. Lib. ii. 3 Jaffe, Regesta, p. 596. 



58 THE WAGER OF LAW. 

sidered to outweigh those of six conjurators;^ and among 
the Lombards, an accusation of murder which could be 
met with three witnesses required twelve conjurators as a 
substitute.^ 

It is therefore evident that conjurators were in no sense 
witnesses, that they were not expected to give testimony, and 
that they merely expressed their confidence in the veracity 
of their principal. It may consequently at first sight appear 
somewhat unreasonable that they should be held guilty of 
perjury and subject to its penalties in case of unluckily sus- 
taining the wrong side of a cause. It is probably owing to 
this apparent injustice that some writers have denied that they 
were involved in the guilt of their principal, and among 
others the learned Meyer has fallen into this error.^ The 
proof, however, is too clear for dispute. We have already 
seen that the oath was an unqualified assertion of the justice 
of the side espoused, without reservation justifying the escape 
of the compurgator from the charge of false swearing, and 
one or two allusions have been made to the punishments 
inflicted on them when subsequently convicted of perjury. 
The code of the x\lamanni recognized the guilt involved in 
such cases when it denied the privilege of compurgation to 
any one who had previously been more than once convicted 
of crime, giving as a reason the desire to save innocent per- 
sons from incurring the sin of perjury.* Similar evidence is 
derived from a regulation promulgated by King Liutprand 
in the Lombard Law, by which a man nominated as a con- 
jurator, and declining to serve, was obliged to swear that he 
dared not take the oath for fear of his soul.^ A case in point 

1 L. Baioar. Tit. xiv. cap. i. ^ 2. 

2 L. Longobard. Lib. I. Tit. ix. g 37. 

3 Institutions Judiciaires, I. 308. 

4 Ut propter suam nequitiam alii qui volunt Dei esse non se perjurent, 
nee propter culpam alienam semetipsos perdant. — L. Alaman. Tit. xlii. 

5 Quod pro anima sua timendo, non proesumat sacramental is esse. — L. 
Longobard. Lib. ii. Tit. Iv. ^ 14. 



RESPONSIBILITY OF COMPURGATORS. 59 

occurs in the life of St. Boniface, whose fellow-laborer 
Adalger in dying left his property to the church. The 
graceless brothers of the deceased disputed the bequest, and 
offered to make good their claim to the estate by the requi- 
site number of oaths. The holy man ordered them to swear 
alone, in order not to be concerned in the destruction of 
their conjurators, and on their unsupported oaths gave up 
the property.^ 

The law had no hesitation in visiting such cases with the 
penalties reserved for perjury. By the Salic code unlucky 
compurgators were heavily fined. ^ Among the Frisians, 
they had to buy themselves off from punishment by the 
amount of their wer-gild — the value set upon their heads.' 
A slight relaxation of this severity is manifested in the Car- 
lovingian legislation, by which they were punished with the 
loss of a hand — the immemorial penalty of perjury — unless 
they could establish, by undergoing the ordeal, that they had 
taken the oath in ignorance of the facts ; but even in trifling 
causes, a defeated litigant could accuse his own conjurator 
of perjury, when both parties were sent to the ordeal of the 
cross, and if the conjurator broke down he lost a hand.* So 
late as the close of the twelfth century, we find Celestin III. 
ordering the employment of conjurators in a class of cases 
about the facts of which they could not possibly know any- 
thing, and decreeing that if the event proved them to be in 
error, they were to be punished for perjury.^ That such 

' Otlilon, Vit. S. Bonif. Lib, II. c. xxi. — " Vos soli juratis, si vultis: 
nolo ut omnes hos congregatos perdatis." — Boniface, however, did not 
weakly abandon the cause of the church. He freely invoked curses on 
the greedy brethren, which being fulfilled on the elder, the terror-stricken 
survivor gladly relinquished the dangerous inheritance. 

2 L. Salic. Tit. I. II 3, 4. 

3 L. Frisionum Tit. X. 

4 Capit. Pippini ann. 793 | 15. — Capit. Car. Mag. incert. anni c. x. 
(Martene Ampl. Collect. Yll. 7.) 

5 Celest. PP. HI. ad Brugnam Episc. (Baluz. et Mansi, III. 382.) 



6o THE WAGER OF LAW. 

liability was fully recognized at this period is shown by the 
argument of Aliprandus of Milan, a celebrated contemporary 
legist, who, in maintaining the position that an ordinary 
witness committing perjury must always lose his hand, with- 
out the privilege of redeeming it, adds that no witness can 
perjure himself unintentionally ; but that conjurators may do 
so either knowingly or unknowingly, that they are therefore 
entitled to the benefit of the doubt, and if not wittingly 
guilty, that they should have the privilege of redeeming their 
hands. ^ 

All this seems in the highest degree irrational, yet in 
criticizing the hardships to which innocent conjurators were 
thus exposed, it should be borne in mind that the whole sys- 
tem was a solecism. In its origin, it was simply summoning 
the kinsmen together to bear the brunt of the court, as they 
were bound to bear that of battle ; and as they were liable 
for a portion of the fine which was the penalty of all crimes 
— personal punishments for freemen being unknown — they 
could well afford to incur the risk of paying for perjury in 
order to avoid the assessment to be levied upon them in case 
of the conviction of their relative. In subsequent periods, 
when this family responsibility became weakened or disused, 
and the progress of civilization rendered the interests of 
society more complex, the custom could only be retained by 
making the office one not to be lightly undertaken. A man 
who was endeavoring to defend himself from a probable 
charge of murder, or who desired to confirm his possession 
of an estate against a competitor with a fair show of title, 
was expected to produce guarantees that would carry convic- 
tion to the minds of impartial men. As long as the practice 
existed, it was therefore necessary to invest it with every 
solemnity, and to guard it with penalties that would obviate 
some of its disadvantages. 

* Cod. Vatican. No. 3845, Gloss, ad L. 2 Lombard, ii, 51, apud Sa- 
vigny, Geschichte d. Rom. Recht. B. iv. — I owe this reference to the 
kindness of my friend J. G. Rosengarten, Esq. 



DECLINE OF COMPURGATION. 6l 

Accordingly, we find that it was not always a matter of 
course for a man to clear himself in this manner. The 
ancient codes have frequent provisions for the fine incurred 
by those unable to procure the requisite number of com- 
purgators, showing that it was an occurrence constantly 
kept in mind by legislators. Nor was it only landless and 
friendless men who were exposed to such failures. In 794, 
a certain Bishop Peter was condemned by the Synod of 
Frankfort to clear himself, with two or three conjurators, 
of the suspicion of being involved in a conspiracy against 
Charlemagne, and, small as was the number, he was unable 
to procure them.^ So, in the year iioo, when the canons 
of Autun, at the Council of Poitiers, accused their bishop, 
Norgaud, of simony and other irregular practices, and he 
proposed to absolve himself with the compurgatorial oaths 
of the Archbishop of Tours and the Bishop of Redon, the 
canons went privately to those prelates and threatened that 
in such event they would bring an accusation of perjury and 
prove it by the ordeal of fire, whereupon the would-be con- 
jurators wisely abandoned their intention, and Norgaud was 
suspended.^ The most rigid compliance with the requisi- 
tions of the law was exacted. Thus the statutes of Nieuport, 
in 1 163, provide a heavy penalty, and in addition pronounce 
condemnation, when a single one of the conjurators declines 
the oath.^ 

DECLINE OF COMPURGATION. 

In a system of which the fundamental principle was so 
vicious, the best efforts of legislation could prove but a slight 

• Capit. Car. Mag. ann. 794 ^ 7. 

2 Hugo. Flaviniac. Lib. ii. ann. iioo. Norgaud, however, was rein- 
staled next year by quietly procuring, as we have already seen, two 
brother prelates to take the oath with him, in the absence of his antago- 
nists. 

3 Et si quis de quinque juvantibus defecerit, accusatus debit tres libras, 
et percusso decern solidos. — Leg. Secund. Noviportus (Oudeglierst). 

6 



62 THE WAGER OF LAW. 

palliation, and from an early period we find efforts made for 
its abrogation or limitation. In 983, a constitution of Otho 
II. abolished it in cases of contested estates, and substituted 
the wager of battle, on account of the enormous perjury 
which it occasioned.^ In England, a more sweeping denun- 
ciation, declaring its abolition and replacing it with the 
vulgar ordeal, is found in the confused and contradictory 
compilation known as the laws of Henry I.^ 

We have already seen, from instances of later date, how 
little influence these efforts had in eradicating a custom so 
deeply rooted in the ancestral prejudices of all the European 
races. The hold which it continued to enjoy on the popular 
confidence is well illustrated by the oath which, according 
to the Romancero, was exacted of Alfonso VI. of Castile, 
by the Cid to clear him of suspicion of privity to the assassi- 
nation of his brother and predecessor Sancho II. 

"Que nos fagays juraniento 
Qua! vos lo querran tomar, 
Vos y doce de los vuesos, 
Quales vos querays juntar. 
Que de la muerte del Rey 
Non tenedes que culpar .... 
Ni tampoco della os plugo, 
Ni a ella distes lugar."^ 

The same reliance on its efficacy is shown in a little ballad 
by Audefroi-le-Batard, a renowned trouvere of the twelfth 
century — 

• L. Longobaid. Lib. ii. Tit. Iv. ^ 34. — Qua ex re mos detestabilis in 
Italia, improbusque non imitandus inolevit, ut sub legum specie jurejurando 
acquireret, qui Deum non timendo minime formidaret perjurare. 

2 L Henrici I. cap. Ixiv. ^ i. " Malorum autem infestacionibus et per- 
jurancium conspiracione, depositum estfrangens juramentum,ut magis Dei 
judicium ab accusatis eligatur; et unde accusatus cum una decima se pur- 
garet per eleccionem et sortem, si ad judicium ferri calidi vadat." This 
cannot be considered, however, as having abrogated it even temporarily in 
England, since it is contradicted by many other laws in the same code, 
which prescribe the use of compurgators. 

3 Romances Antiguos Espaiioles. Londres, 1825, T, I. pp. 246-7. 



POPULAR CONFl DENCE. 63 

LA BELLE EREMBORS.t 

" Quand vient en. mai, que Ton dit as lous jors," etc. 
In the long bright days of spring-time, 

In the month of blooming May, 
The Franks from royal council-field 

All homeward wend their way. 
Rinaldo leads them onward, 

Past Erembors' gray tower, 
But turns away, nor deigns to look 

Up to the maiden's bower. 

Ah, dear Rinaldo! 

Full in her turret window 

Fair Erembors is sitting, 
The love-lorn tales of knights and dames 

In many a color knitting. 
She sees the Franks pass onward, 

Rinaldo at their head. 
And fain would clear the slanderous tale 

That evil tongues have spread. 

Ah, dear Rinaldo! 

" Sir knight, I well remember 

When you had grieved to see 
The castle of old Erembors 

Without a smile from me." 
"Your vows are broken, princess. 

Your faith is light as air. 
Your love another's, and of mine 

You have nor reck nor care," 

Ah, dear Rinaldo! 

" Sir knight, my faith unbroken, 

On relics I will swear; 
A hundred maids and thirty dames 

With me the oath shall share, 
I've never loved another. 

From stam my vows are free. 
If this content your doubts and fears, 

You shall have kisses three," 

Ah, dear Rinaldo! 

Le Roux de Lincy, Chants Historiques Frangais, I, 15. 



64 T H E W A G E R O F L A W . 

Rinaldo mounts the staircase, 

A goodly knight, I ween, 
"With shoulders broad and slender waist, 

Fair hair and blue eyes keen. 
Earth holds no youth more gifted 

In every knightly measure ; 
When Erembors beholds him, 

She weeps with very pleasure. 

Ah, dear Rinaldo! 

Rinaldo in the turret 

Upon a. couch reposes. 
Where deftly limned are mimic wreaths 

Of violets and of roses. 
Fair Erembors beside him 

Sits clasped in loving hold, 
And in their eyes and lips they find 

The love they vowed of old ! 

Ah, dear Rinaldo! 

In England, owing probably to the growth of its offshoot 
the jury-trial, the custom seems to have lost its importance ear- 
lier than elsewhere. Towards the close of the twelfth century, 
Glanville compiled his excellent little treatise " De legibus 
Angliae," the first satisfactory body of legal procedure which 
the history of mediaeval jurisprudence affords. Complete as 
this is in all the forms of prosecution and defence, the allu- 
sions to conjurators are so slight as to show that already 
they constituted an infinitesimal part of legal machinery, and 
that they were employed rather on collateral points than on 
main questions. Thus a defendant who desired to deny the 
serving of a writ could swear to its non-reception with twelve 
conjurators;^ and a party to a suit, who had made an unfor- 
tunate statement or admission in court, could deny it by 
bringing forward two to swear with him against the united 
recollections and records of the whole court. ^ The custom, 

' Glanville, Lib. i. cap. ix. Also, Lib. i. c. xvi.. Lib. ix. c. i.. Lib. 
X. c. V. 

2 " In aliis enim curiis si quis aliquid dixerit unde eum poenituerit, po- 
tent id negare contra totam curiam tertia manu cum sacramento, id se non 



DECLINE OF COMPURGATION, 65 

however, still continued in use. In 1194, when Richard I. 
undertook, after his liberation, to bring about a reconcilia- 
tion between his chancellor William, Bishop of Ely, and the 
Archbishop of York, one of the conditions was that the 
chancellor should swear with a hundred priestly compurga- 
tors that he had neither caused nor desired the arrest of the 
archbishop.* In the next century Bracton alludes to the 
employment of conjurators in cases of disputed feudal ser- 
vice between a lord and his vassal, wherein the utmost exact- 
ness was rigidly required both as to the number and fitness 
of the conjurators,^ and we shall see that no formal abro- 
gation of it took place until the nineteenth century. An 
outgrowth of the custom, moreover, was the Inquest of 
Fame, by which '*the general character of the accused, as 
found by a jury, was accepted as an indication of the guilt or 
innocence of the prisoner."^ 

dixisse affirmando." — (Ibid. Lib. viii. c. ix.) — In some other systems of 
jurisprudence, this unsophisticated mode of beclouding justice was obtained 
by insisting on the employment of lawyers, whose assertions would not be 
binding on their clients. Thus, in the Assises de Jerusalem (Baisse Court, 
cap. 133): "Et por ce il deit estre lavantparlier, car se lavantparlier dit 
parole quil ne doie dire por celuy cui il parole, celui por qui il parle et son 
conceau y pueent bien amender ains que le iugement soit dit. Mais se 
celuy de cui est li plais diseit parole qui li deust torner a damage, il ne la 
pent torner arieres puis quil la dite." The same caution is recommended 
in the German procedure of the fourteenth century — " verbis procurators 
non eris adstrictus, et sic vitabis damnum." — (Richstich Landrecht, cap. 

II. Cf, Jur, Provin. Saxon. Lib. I, art. 60; Lib. II. art. 14.) The same 
abuse existed in France, but was restricted by St. Louis, who made the 
assertion of the advocate binding on the principal, unless contradicted on 
the spot. — (Etablissements, Liv. ii. chap, xiv.) 

' Roger de Hoveden, ann. 1194. 

2 Tunc vadiabit defendens legem se duodecima manu. — Bracton. Lib. 

III. Tract, iii. cap. 37, | i. — Et si ad diem legis faciendge defuerit aliquis 
de XII. vel si contra prsedictos excipi possit quod non sunt idonei ad 
legem faciendam, eo quod villani sunt vel alias idonei minus, tunc domi- 
nus incidet in misericordiam. — Ibid. | 3. So also in Lib. v. Tract, v. cap. 
xiii. ^ 3. 

3 Pike, History of Crime in England, I. 285. 

6* 



66 THE WAGER OF LAW. 

Soon after the time of Granville, the system of compurga- 
tion received a severe shock from its most important patron, 
the church. As stated above, in proceedings between eccle- 
siastics, it was everywhere received as the appropriate mode 
of deciding doubtful cases. Innocent III. himself, who did so 
much to abrogate the kindred absurdity of the ordeal, con- 
tinued to prescribe the use of compurgation in cases of mo- 
ment involving dignitaries of lofty station; though, sensible 
of the abuses to which it led, he was careful in demanding con- 
jurators of good character, whose intimacy with the accused 
would give weight to their oaths. ^ At the same time, in 
endeavoring to remove one of the objections to its use, he in 
reality destroyed one of its principal titles to respect. He 
decreed that compurgators should only be obliged to swear 
to their belief in the truth of their principal's oath,^ and thus 
he attacked the very foundation of. the practice, and gave a 
powerful impulse to the tendency of the times no longer to 
consider the compurgator as sharing the guilt or innocence 
of the accused. Such an innovation could only be regarded 
as withdrawing the guarantee which had immemorially ex- 
isted. To recognize it as a legal precept was to deprive the 
proceeding of its solemnity and to render it no longer a 
security worthy the confidence of the people or sufficient to 
occupy the attention of a court of justice. 

In the confusion arising from the long and varying contest 
as to the boundaries of civil and ecclesiastical jurisdiction, it 
is not easy to determine the exact authority which this, de- 
cretal may have exercised directly in secular jurisprudence. 
We have seen above that the ancient form of absolute oath 
was still employed without change, until long after this 

1 Can. vii. Extra, v. 34. 

2 nil qui ad piirgandam alicujus infamiam inducuntur, ad solum tenentur 
juramento firmare quodveritatem credunt eum dicere qui purgatur. — Can. 
xiii. Extra, v. 34. Innocent also endeavored to put an end to the abuse 
by which ecclesiastics, notoriously guilty, were able to escape the penalty 
due their crimes, by this easy mode of purgation, — Can. xv. eod. loc. 



ADVERSE INFLUENCES. 67 

period, but the moral effect of so decided a declaration from 
the head of the Christian church could not but be great. 
Another influence, not less potent, was also at work. The 
revival of the study of the Roman jurisprudence, dating from 
about the middle of the twelfth century, soon began to ex- 
hibit the results which were to work so profound a change 
in the legal maxims and principles of half of Europe.^ The 
criminal procedure of the barbarians had rested to a great 
degree on the system of negative proofs. In the absence of 
positive evidence of guilt, and sometimes in despite of it, the 
accused was bound to clear himself by compurgation or by 

' The rapidity with which the study of the civil law diffused itself 
throughout the schools and the eagerness with which it was welcomed 
were the subject of indignant comment by the ecclesiastics of the day. As 
early as 1149 we find St. Bernard regretting that the laws of Justinian were 
already overshadowing those of God — " Et quidem quotidie persti'epent in 
palatio leges, sed Justiniani, non Domini" (De Consideratione, Lib. i. cap. 
iv.). Even more bitter were the complaints of Giraldus Cambrensis to- 
wards the end of the century. The highest of high churchmen, in deploring 
the decline of learning among the prelates and clergy of his age, he attri- 
butes it to the exclusive attention bestowed on the jurisprudence of Justin- 
ian, which already offered the surest prizes to cupidity and ambition, and 
he quotes in support of his opinion the dictum of his teacher Mainier, a 
professor in the University of Paris : " Episcopus autem ille, de quo nunc 
ultimo locuti sumus, inter superficiales numerari potuit, cujusmodi hodie 
multos novimus propter leges Justinianas, quse literaturam, urgente cupidi- 
tatis et ambitionis incommodo, adeo in multis jam suffocarunt, quod ma- 
gistrum Mainerium in auditorio scholae suae Parisius dicentem et damna sui 
temporis plangentem, audivi, vaticinium illud Sibillge vere nostris diebus 
esse completum, hoc scilicet ' Venient dies, et vse illis, quibus leges oblite- 
rabunt scientiam literarum.' " (Gemm. Ecclesiast. Dist. Ii. cap. xxxvii.) 
This, like all other branches of learning, was as yet to a great extent in 
the hands of the clergy, though already were arising the precursors of those 
subtle and daring civil lawyers who were destined to do such yeoman's 
service in abating the pretensions of the church. 

It is somewhat singular to observe that at a period when the highest 
offices of the law were frequently appropriated by ecclesiastics, they were 
not allowed to perform the functions of advocates or counsel. See Home's 
Myrror of Justice, cap. ii. sect. 5. 



68 THE WAGER OF LAW. 

the ordeal. The cooler and less impassioned justice of the 
Roman law saw clearly the futility of such attempts, and its 
system was based on the indisputable maxim that it is morally 
impossible to prove a negative — unless indeed that negative 
should chance to be incompatible with some affirmative 
susceptible of evidence — and thus the onus of proof was 
thrown upon the accuser.^ The enthusiastic worshippers of 
the Pandects were not long in recognizing the truth of this 
principle, and in proclaiming it far and wide. The Spanish 
code of Alfonso the Wise, in the middle of the thirteenth 
century, asserts it in almost the same words as the Roman 
jurisconsult.^ Not long before, the Assises de Jerusalem had 
unequivocally declared that ''nul ne pent faire preuve de 
non;" and Beaumanoir, in the ''Coutumes du Beauvoisis," 
approvingly quotes the assertion of the civil doctors to the 
same effect, "Li clerc si dient et il dient voir, que negative 
ne doit pas quevir en proeve." 

Abstract principles, however, though freely admitted, 
were not yet powerful enough to eradicate traditional cus- 
toms rooted deeply in the feelings and prejudices of the age. 
The three bodies of law just cited contradict their own 
admissions, in retaining with more or less completeness the 
most monstrous of negative proofs — the ordeal of battle — 
and the introduction of torture soon after exposed the accused 
to the chances of the negative system in its most atrocious 

1 Actor quod adseverat, probare se non posse profiteado, reum necessi- 
tate monstrandi contrarium non adstringit : cum per rerum naturam factum 
negantis probatio nulla sit. (Const, xxiii. C. de Probat. iv. 19.) — Cum 
inter eum, qui factum adseverans, onis subiit probationis, et negantem nu- 
merationem, cujus naturali ratione probatio nulla est . . . magna sit dif- 
ferentia. (Const. X. C. de non numerat. I v. 30.) It is a little curious to 
see how completely this was opposed to the principle of the early Common 
Law of England, by which in actions for debt "semper incumbit probatio 
neganti" (Fleta, Lib. 11. cap. Ixiii. ^ 11). 

2 La cosa que non es non se puede probar nin mostrar segunt natura. — 
Las Siete Partidas, P. iii. Tit. xiv. 1. i. 



INFLUENCE OF ROMAN LAW. 69 

form. Still these codes show a marked progress as relates 
to the kindred procedure of compurgation. The Partidas, 
promulgated about 1262, is of comparative unimportance as 
an historical document, since it was of but uncertain autho- 
rity, and rather records the convictions of an enlightened 
ruler as to what should be law than the existing institutions 
of a people. The absence of compurgation in Spain, more- 
over, was a direct legacy from the Wisigothic code, trans- 
mitted in regular descent through the Fuero Juzgo.^ The 
Assises de Jerusalem is a more precious relic of mediaeval 
jurisprudence. Constructed as a code for the government 
of the Latin kingdoms of the East, in 1099, by order of 
Godfrey of Bouillon, it has reached us only in the form 
assumed about the period under consideration, and as it pre- 
sents the combined experience of the warriors of many West- 
ern races, its silence on the subject of conjurators is not a 
little significant. The work of Beaumanoir, written in 1283, 
is not only the most perfect embodiment of the. jurisprudence 
of his time, but is peculiarly interesting as a landmark in the 
struggle between the waning power of feudalism and the 
Roman theories which gave vigor and intensity of purpose 
to the enlightened centralization aimed at by St. Louis ; and 
Beaumanoir likewise passes in silence over the practice of 
compurgation, as though it were no longer an existing insti- 
tution. All these legislators and lawyers had been preceded 
by the Emperor Frederic II., who, in 1231, promulgated 
his " Constitutiones Sicularum" for the government of his 
Neapolitan provinces. Frederic was Latin, and not Teu- 

' Though absent from the general laws of Spain, yet compurgation had 
been introduced as an occasional custom. Thus the Fuero of Madrid in 
1202 provides that a man suspected of homicide and other crimes, in the 
absence of testimony, can clear himself with six or twelve conjurators, ac- 
cording to the grade of the offence — "iuret cum xii. uicinos bonos et ille 
de mays: et pergat in pace" — (El Fuero de Madrid del ano de 1202.) 
(Mem. de la Real. Acad, de Historia, 1852.) We shall see hereafter that 
it appears in the Fuero Viejo of Castile in 1356. 



70 THE WAGER OF LAW. 

tonic, both by education and predilection, and his system of 
jurisprudence is greatly in advance of all that had preceded 
it. That conjurators should find no place in his scheme of 
legal procedure is, therefore, only what might be expected. 
The collection of laws known as the ''Etablissements" of 
St. Louis is by no means a complete code, but it is suffi- 
ciently copious to render the absence of all allusion to com- 
purgation significant. In fact, the numerous references to 
the Digest show how strong was the desire to substitute the 
Roman for the customary law, and the efforts of the king to 
do away with all negative proofs of course included the one 
under consideration. The same may be said of the ^'Livres 
de Jostice et de Plet" and the ^' Conseil" of Pierre de Fon- 
taines, two unofficial books of practice, which represent with 
tolerable fulness the procedures in vogue during the latter 
half of the thirteenth century ; while the ''Olim," or records 
of the Parlement of Paris, the king's high court of justice, 
show that the same principles were kept in view in the long 
struggle by which that body succeeded in extending the 
royal jurisdiction at the expense of the independence of the 
vainly resisting feudatories. In the ''Olim," from 1254 to 
13 18, I can find but two instances in which compurgation 
was required — one in 1279 at Noyon, and one in 1284 at 
Compiegne. As innumerable decisions are given of cases in 
which its employment would have been equally appropriate, 
these two can only be regarded as exceptional, and the infer- 
ence is fair that some local custom rendered it impossible to 
refuse the privilege on these special occasions.^ 

All these were the works of men deeply imbued with the 
spirit of the resuscitated jurisconsults of Rome. Their 
labors bear testimony rather to the influences tending to 
overthrow the institutions bequeathed by the barbarians to 
the Middle Ages, than to a general acceptance of the inno- 
vations attempted. Their authority was still circumscribed 

I Olim. II. 153, 237. 



- STRUGGLES OF FEUDALISM. 7I 

by the innumerable jurisdictions which yet defied their 
gradual encroachments, and resolutely maintained ancestral 
customs. Thus, in 1250, we find in the settlement of a 
quarrel between Hugues Tirel Seigneur of Poix in Picardy 
and the commune of that place, that one of the articles was 
to the effect that the mayor with thirty-nine of the bourgeois 
should kneel before the dame de Poix and offer to swear 
that an insult inflicted on her had not been done, or that if it 
had, it had been in honor of the Seigneur de Poix.'^ Even 
an occasional instance maybe found where the central power 
itself permitted the use of compurgation, showing how diffi- 
cult it was to eradicate the prejudices transmitted through 
ages from father to son, and that the policy adopted by St. 
Louis and Philippe-le-Bel, aided by the shrewd and ener- 
getic civil lawyers who assisted them so ably, was not in all 
cases adhered to. Thus, in 1283, when the bailli of Amiens 
w^as accused before the Parlement of Paris of having invaded 
the privileges of the church by trying three clerks accused 
of crime, it was decided that he should swear with six com- 
purgators as to his ignorance that the criminals were eccle- 
siastics.^ So, in T303, a powerful noble of the court of 
Philippe-le-Bel was accused of a foul and treacherous mur- 
der, which a brother of the victim offered to prove by the 
wager of battle. Philippe was endeavoring to abolish the 
judicial duel, and the accused desired strongly to escape 
that ordeal. He was accordingly condemned to clear him- 
self of the imputed crime, by a purgatorial oath with ninety- 
nine nobles, and at the same time to satisfy the fraternal claim 
of vengeance with an enormous fine^ — a decision which 
off'ers the best practical commentary on the degree of faith 
reposed in this system of purgation. Even the Parlement of 

' Actes du Parlement de Paris, T. I, p. cccvii (Paris, 1863). 

2 Actes du Parlement de Paris, T. I. p. 382. 
Statuunt . . . se manu centesima nobilium se purgare, et ad haec 
benedicto juveni bis septem librarum milio pro sui rancoris satisfactione 
prsesentare. — Wilelmi Egmond. Chron. 



72 THE WAGER OF LAW. 

Paris in 1353 and a rescript of Charles-le-Sage in 1357 
allude to compurgation as still in use and of binding force/ 

It was in the provinces, however, that the system mani- 
fested its greatest vitality, protected both by the stubborn 
dislike to innovation, and by the spirit of independence 
which so long and so bitterly resisted the centralizing efforts 
of the crown. The Roman law concentrated all power in 
the person of the sovereign, and reduced his subjects to one 
common level of implicit obedience. The genius of the 
barbaric institutions and of feudalism localized power. The 
principles were essentially oppugnant, and the contest be- 
tween them was prolonged and confused, for neither party 
could in all cases recognize the ultimate result of the minuter 
points involved, though each was fully alive to the broad 
issues of the struggle. 

How obstinate was the attachment to bygone forms may 
be understood, when, we see even the comparatively preco- 
cious civilization of a city like Lille preserve the compurga- 
torial oath as a regular procedure until the middle of the 
fourteenth century, even though the progress of enlighten- 
ment had long rendered it a mere formality, without serious 
meaning. Until the year 1351, the defendant in a civil 
suit was obliged to substantiate the oath of denial with two 
conjurators of the same sex, who swore to its truth, with 
some slight expression, indeed, of reserve. '-* The minutest 
regulations were enforced as to this ceremony, the position 
of every finger being determined by law, and though it was 
the veriest formality, serving merely as an introduction to 
the taking of testimony and the legal examination of the 

1 Is qui reus putatur tertia manu se purgabit, inter quos sint duo qui 
dicentur denominati. — Du Cange s. v. yiirajueiitum. 

2 Et li deffendans, sour qui on a clamet se doit deffendre par lui tierche 
main, se chou est horn II, hommes et lui, se chou est fame II. femmes et 
li a tierche. ... " Tel sierment que Jehans chi jura boin sierment y 
jura au mien ensiant. Si m'ait Dius et cliist Saint." — Roisin, Fran- 
chises, etc. de la Ville de Lille, pp. 30, 35. 



CUSTOMS OF NORMANDY. 73 

case, yet the slightest error committed by either party lost 
him the suit irrecoverably.* 

Normandy was even more faithful to the letter of the 
ancient traditions. The Coutumier in use until the revision 
of 1583 under Henry III. retains a remnant of the practice 
under the name of desrene, by which, in questions of little 
moment, a man could rebut an accusation with two or four 
compurgators, even when it was sustained by witnesses. The 
form of procedure was identical with that of old, and the 
oath, as we have already seen (page 53), was an unqualified 
assertion of the truth of that of the accused.^ Practically, 
however, we may assume that the custom had long grown 
obsolete, for the letters patent of Henry HI., ordering the 
revision in 1577, expressly state that the provisions of the 
existing laws "estoient la pluspart hors d' usage et peu ou 
point entendu des habitants du pays;" and that compurga- 
tion was one of the forgotten formulas may fairly be inferred 
from the fact that Pasquier, writing previous to 1584, speaks 
of it as altogether a matter of the past.^ 

' Ibid. p. 51. The system was abrogated by a municipal ordinance of 
September, 135 1, in accordance with a special ordonnance to that effect 
issued by King John of France in March, 1350. 

The royal ordonnance declares that the oath was " en langage estraigne 
et de mos divers et non de legier a retenir ou prononchier," and yet 
that if either party "par quelconques maniere faloit en fourme ou en 
langage ou que par fragilite de langhe, huirans eu, se parolle faulsist ou 
oubvliast, ou eslevast se main plus que li dite maniere acoustumee en re- 
queroit ou quelle ne tenist fei-mement sen poch en se paulme ou ne wardast 
et maintenist pluiseurs autres frivoles et values chozes et manieres apparte- 
nans au dit sierment, selonc le loy de la dite ville, tant em parole comme 
en fait, il avoit du tout sa cause perdue, ne depuis nestoit rechus sur che 
li demanderes a claim ou complainte, ne li deffenderes a deffensce." — 
Ibid. p. 390. 

2 Anc. Coiitume de Normandie,'chap. Ixxxv. (Bourdot de Richebourg, 
IV. 53-4.) 

3 Recherches de la France, Liv. iv. chap. iii. Concerning the date of 
this, see La Croix du Maine, s. v. EUienne Pasquier. 

7 



74 THEWAGEROFLAW. 

The fierce mountaineers of Beam were comparatively in- 
accessible to the innovating spirit of the age, and preserved 
their feudal independence amid the progress and reform of 
the sixteenth century, long after it had become obsolete 
elsewhere throughout Southern Europe. Accordingly, we 
find the practice of compurgation maintained as a regular 
form of procedure in the latest revision of their code, made 
by Henry II. of Navarre in 1551, which continued in force 
until the eighteenth century.^ The influence of the age is 
shown, however, even there, in a modification of the oath, 
which is no longer an unreserved confirmation of the prin- 
cipal, but a mere affirmation of belief.^ 

In Castile, a revival of the custom is to be found in the 
code compiled by Pedro the Cruel, in 1356, by which, in 
certain cases, the defendant was allowed to prove his inno- 
cence with the oath of eleven hidalgos.^ This, however, is 
so much in opposition to the efforts made a century earlier, 
by Alfonso the Wise in the Partidas, to enforce the princi- 
ples of the Roman jurisprudence, and is so contrary to the 
spirit of the Ordenamiento de Alcala, which continued in 
force until the fifteenth century, that it can only be regarded 
as a tentative resuscitation of mere temporary validity. 

The Northern races resisted more obdurately the advances 
of the reviving influence of the Roman law. Though we 
have seen Frederick II. omitting all notice of compurgation 
in the code prepared for his Neapolitan dominions in 123T, 
he did not attempt to abrogate it among his German sub- 

1 Fors et Cost, de Beam, Ruhr, de Juramentz (Bourdot de Richebourg, 
IV. 1082). 

2 Lo jurament deu seguido se fe Juran per aquetz sanctz bertat ditz 
exi que io crey. 

3 E si gelo negare e non geloquisier probar, devel' facer salvo con once 
Fijosdalgo e el doceno, que non lo fi§o. — (Fuero Viejo de Castiella, Lib. I. 
Tit. V. I. 12.) It will be observed that this is an unqualified recognition 
of the system of negative proofs. 



GERMANY. 75 

jects, for it is alluded to in a charter granted to the city of 
Regensburg in 1230.^ The Schwabenspiegel, which during 
the thirteenth and fourteenth centuries was the municipal law 
of Southern Germany, directs the employment of conjurators 
in various classes of actions which do not admit of direct 
testimony.^ The code in force in Northern Germany, as we 
have already seen, gave great facilities for rebutting accusa- 
tions by the single oath of the defendant, and therefore the 
use of conjurators is but rarely referred to in the Sachsen- 
Spiegel, though it was not unknown, for either of the parties 
to a judicial duel could refuse the combat by procuring six 
conjurators to swear with him that he was related to his 
antagonist.^ In the Saxon burgher law, however, the prac- 
tice is frequently alluded to, and it is evident from various 
passages that a man of good character who could get six 
others to take with him the oath of denial was not easily 
convicted. But where there was satisfactory proof, compur- 
gation was not allowed, and in homicide cases, if a relative 
of the slain decided to proceed by the duel, his claim of 
vengeance was supreme, and no other process was admissi- 
ble.* In the early part of the sixteenth century, Maxi- 
milian I. did much to diminish the use of the compurgatorial 
procedure,^ but that he failed to eradicate it entirely is evi- 
dent from a constitution issued by Charles V. in 1548, 
wherein its employment is enjoined in doubtful cases m a 
manner to show that it was an existing resource of the law, 
and that it retained its hold upon public confidence, although 
the conjurators were only required to swear as to their be- 
lief in the oath of their principal.^ 

' Du Cange, s. v. Juramentum. 

2 Jur. Provin. Alaman. cap, xxiv, ; cccix. \ 4; cccxxix. W 2, 3; 
cccxxxix. \ 3. (Edit. Schilteri.) 

3 Jur. Provin. Saxon. Lib. I. c. 63. 

1 Sachsische Weichbild, art. 71, 72, 86, 40, 88. 

5 Meyer, Institutions Judiciaires, V. 221. 

'° Sique accusatus tanta ac tam gravi suspitione laboraret ut aliorum 



76 THE WAGER OF LAW. 

In the Netherlands it likewise maintained its position. 
Damhouder, writing in 1554, after describing its employ- 
ment in the Courts Christian, adds that by their example it 
was occasionally used also in secular tribunals.* 

In Scotland, as late as the middle of the fourteenth cen- 
tury, its existence is proved by a statute which provides that 
if a tliief escaped from confinement, the lord of the prison 
should clear himself of complicity with the evasion by the 
oaths of thirty conjurators, of whom three were required to 
be nobles.^ 

The Scandinavian nations adhered to the custom with 
even greater tenacity. In the code of Haco Haconsen, 
issued towards the close of the thirteenth century, it appears 
as the basis of defensive procedure in almost all criminal 
cases, and even in civil suits its employment is not infre- 
quently directed, the number of conjurators being propor- 
tioned to the nature of the crime oV to the amount at stake, 
and regulations for administering the oath being given with 
much minuteness.^ In Denmark it was not abolished until 
near the middle of the seventeenth century, under Chris- 
tiern IV., after it had become a crying abuse through the 
habit of members of families, and even of whole guilds, en- 
tering into foj:mal engagements to support each other in this 
manner.* The exact date of its abrogation is a matter of 
uncertainty, and the stubbornness with which the people 

quoque purgatione necesse esset, in arbitratu stet judicis, sibi earn velit 
injungere, nee ne, qui nimirum eompurgatores jurabunt, se credere quod 
ille illive qui se per juramentum excusarunt, recte vereque juraverint. — 
Constit. de Pace Publica cap. xv. § i. (Goldast. Constit, Imp. I. 541.) 

' Damhouder. Rerum Criminalium Praxis cap. xliv. No. 6 (Antwerp. 
1601). 

2 Statut. Davidis II. cap. i. ^ 6. 

3 Jarnsida, Mannhelge & Thiafa-BaXkr _passim; Erfthatal cap. xxiv.; 
Landabrigtha-Balkr cap. xxviii. ; Kaupa-Balkr ca]). v., ix., etc. 

^ See Sporon & Finsen, Dissert, de Usu Juramenti juxta Leges Danise 
Antiquas, Havniae 181 5-1 7, P. 1. pp. 160-1, P. II. pp. 206-8. 



SWEDEN POLAND. 77 

clung to it is shov/n by the fact that even in 1683, Chris- 
tiern V., in promulgating a new code, found it necessary to 
formally prohibit accused persons from being forced to pro- 
vide conjurators.^ In Sweden, its existence was similarly 
prolonged. Directions for its use are contained in The code 
which was in force until the seventeenth century f it is con- 
stantly alluded to in the laws of Gustavus Adolphus;^ and an 
edict of Charles XL in 1662 reproves the readiness with 
which men were everywhere prompt to serve as compurga- 
tors, and requires the judges, before admitting them, to 
investigate whether they are proper persons, and what are 
their reasons to believe in the innocence of their principal.* 
By this time, therefore, though not yet witnesses, they were 
becoming assimilated to them. 

The vitality of communal societies among the Slavs natu- 
rally led to the maintenance of a custom which drew its 
origin from the solidarity of families, atid it is therefore not 
surprising to find it in Poland described as in full force as 
late as the eighteenth century, the defendant being obliged 
to support his purgatorial oath with conjurators, who swore 
as to its truth. ^ Yet among the Poles confidence in it as a 
legal proof had long been undermined. In 1368 Casimir III. 
decreed that a man of good repute, ^hen aceused of theft, 
could clear himself by his own oath; but if his character 
was doubtful, and compurgation was prescribed, then if he 
fell short by one conjurator of the number required, he 
should satisfy the accuser, though he should not be rendered 
infamous for the future. This led to an increase of crime, 
and a hundred years later Casimir IV. proclaimed a law by 
which compurgation was only allowed three times, after 

' Christiani V. Jur. Danic. Lib. I. c. xiv. ^ 8, 

2 Poteritque se tunc purgare cui crimen impomtur juramento XVIII. 
virorum. — Raguald. Ingermund. Leg. Suecorum Lib. I. c. xvi. 
2 Legg. Civil. Gustavi Adolphi, Tit. x. 
* Caroli XI. Judicum Regulse, cap. xxxii. 
5 Ludewig. Reliq. MSS. T. VII. p. 401. 



78 THE WAGER OF LAW. 

which a persistent offender was abandoned to the full se- 
verity of the law, as being presumably guilty and not 
deserving of escape. At the same time any one summoned 
to compurgation, and appearing before the judge without 
compurgators, was ipso facto pronounced infamous. From 
a case recorded it would appear that twelve conjurators were 
required to outweigh the single oath of the accuser.^ Among 
the southern Slavs the custom was likewise preserved to a 
comparatively late date. An edict of Hermann, Ban of 
Slavonia, in 1416, orders that any noble accused of neglect 
to enforce a decree of proscription against a malefactor, 
should purge himself with five of his peers as conjurators, in 
default of which he was subject to a fine of twenty marcs. ^ 

The constitutional reverence of the Englishman for estab- 
lished forms and customs, however, nominally preserved 
this relic of barbarism in the common law to a period later 
by far than its disappearance from the codes of other 
nations. According to Bracton, in the thirteenth century, 
in all actions arising from contracts, sales, donations, etc., 
when there was no absolute proof, the plaintiff came into 
court with his ''secta," and the defendant was bound to 
produce two conjurators for each one advanced by the 
plaintiff, the evidence apparently preponderating according 
to quantity rather than quality.^ From the context, it would 
appear that the '* secta" of the plaintiff consisted of his 
friends and followers willing to take the oath with him, but 
not absolutely witnesses. The Fleta, however, some twenty- 

' Herb, de Fulstin Statut. Reg. Poloniae. Samoscii, 1597, pp. 186-88, 

465- 

2 Bassani de Sacchi Jura Regni Croatias, Dalmatise et Sclavonic. Za- 
grabiae, 1862, Pt. I. p. 182. 

3 Et sic major praesumplio vincit minorem. Si autem querens proba- 
tionem habuerit, sicut instrumenta et chartas sigillatas, contra hujusmodi 
probationes non erit defensio per legem. Sed si in instrumento contra- 
dicatur, fides instrumenti probabitur per patriam et per testes. Bracton. 
Lib. IV. Tract, vi. cap. 18, ^ 6. 



ENGLAND. 79 

five years later, uses the term in the sense of witnesses, and 
in actions of debt directs the defence to be made with con- 
jurators double in number the plaintiff's witnesses,^ thus 
offering an immense premium on dishonesty and perjury. 
Notwithstanding this, the nobles and gentry who came to 
London to attend the court and Parliament apparently were 
subjected to many annoyances by the citizens who strove to 
collect their debts, and in 1363 Edward III. relieved them 
by abrogating the wholesome rule laid down by Bracton, 
and enacting that a debtor could wage his law with a suffi- 
cient number of conjurators, in spite of any papers put for- 
ward in evidence by the creditor, who is curtly told to find 
his remedy in some other way.^ The unquestionable advan- 
tages which this offered to not the least influential part of a 
feudal community probably had something to do with its 
preservation. The "Termes de la Ley," compiled in the 
early part of the sixteenth century, states as the existing 
practice that ''when one shall wage his law, he shall bring 
with him 6, 8, or 12 of his neighbors, as the court shall 
assign him, to swear with him;" and in the year 1596 the 
statute 38 Eliz. 3, 5, shows that it was still in common use 
in actions for debt.^ Style's "Practical Register," pub- 
lished in 1657, also describes the process, but an absurd 
mistake as to the meaning of the traditional expression 
"jurare manu" shows that the matter was rather a legal 
curiosity than a procedure in ordinary use ; and, indeed, 
the author expressly states that the practice having been 
*' abused by the iniquity of the people, the law was forced to 
find out another way to do justice to the nation." Still the 
law remained unaltered, and a case is recorded occurring in 
1708, known as Gunner's case, where ''the plaintiff became 
nonsuit, when the defendant was ready to perfect his law,"* 

• Fleta, Lib. ii. c. Ixiii. ^ 10. 

2 38 Edw. III. St. I. cap. V. (Statutes at Large I. 319. Ed. 1769.) 

3 Jacob's Review of the Statutes, 2d Ed., London, 1715, p. 532. 

4 Ibid. 



So THE WAGER OF LAW. 

and Jacob, in his ''Review of the Statutes," published not 
long after, treats of it as still part of the existing judicial 
processes. As the wager of law came to be limited to sim- 
ple actions of debt, shrewd lawyers found means of avoiding 
it by actions of ''trespass upon the case," and other indirect 
forms which required the intervention of a jury, but Burn in 
his Law Dictionary (Dublin, 1792) describes the whole pro- 
cess with all its forms as still existing, and in 1799 a case 
occurred in which a defendant successfully eluded the pay- 
ment of a claim by producing compurgators who "each 
held up his right hai^d, and then laid their hands upon the 
book and swore that they believed what the defendant swore 
was true." The court endeavored to prevent this farce, but 
law was law, and reason was forced to submit. Even this 
did not provoke a change. In 1824, in the case of King v. 
Williams (2 Barnewell & Cresswell, 528), some black-letter 
lawyer revived the forgotten iniquity for the benefit of a 
client in want of testimony, and demanded that the court 
should prescribe the number of conjurators necessary for the 
defence, but the court refused assistance, desiring to give the 
plaintiff the benefit of any mistake that might be made. 
Williams then got together eleven conjurators, and appeared 
in court with them at his back, when the plaintiff, recognizing 
the futility of any further proceedings, abandoned his case 
in disgust.^ Still, the fine reverential spirit postponed the 
inevitable innovation, and it was not until 1833 that the 
wager of law was formally abrogated by 3 and 4 William 
IV., c. 42, s. 13.2 

It is quite possible that, strictly speaking, the wager of 
law may still preserve a legal existence in this country. In 
1 71 2 an act of the Colony of South Carolina, enumerating 

• I owe a portion of these references to a paper in the London "Jurist" 
for March, 1827, the writer of which instances the wager of law as an evi- 
dence of "that jealous affection and filial reverence which have converted 
our code into a species of museum of antiques and legal curiosities." 

'^ Wharton's Law Lexicon, 2d ed., p. 758. 



ITS USE BY THE CHURCH. 8l 

the English laws to be held as in force there, specifically 
includes those relating to this mode of defence, and I am 
not aware that they have ever been formally abrogated.^ In 
1811 Chancellor Kilty, of Maryland, speaks of the wager of 
law as being totally disused in consequence of the avoidance 
of the forms of suit which might admit of its employment, 
but he evidently regards it as not then specifically abolished.^ 

While the common sense of mankind was gradually elimi- 
nating the practice from among the recognized procedures 
of secular tribunals, the immutable nature of ecclesiastical 
observances prolonged its vitality in the bosom of the 
church. We have seen above that Innocent III., about the 
commencement of the thirteenth century, altered the form 
of oath from an unqualified confirmation to a mere assertion 
of belief in the innocence of the accused. That this at once 
became the standard formula in ecclesiastical cases is proba- 
ble when we find it adopted for the oaths of the compurgators 
who, during the Albigensian persecution, were required by 
the nascent Inquisition in all cases to assist in the purgation 
of such suspected heretics as were allowed to escape so 
easily.^ And this is no doubt the "congruous purgation" 
to which Innocent III. and Gregory IX. alluded as that by 
which suspected heretics should clear themselves.* Zealous 
inquisitors, however, paid little attention to such forms 
which allowed their victims a chance of escape ; for it is 
related of Conrad of Marburg, who for eighteen years spread 
terror and desolation throughout Germany, that when the 

' Cooper's Statutes at Large of South Carolina, Columbia, 1837, II. 403. 

2 Kilty's Report on English Statutes, Annapolis, 181 1, p. 140. 

3 Ego talis juro . . . me firmiter credere quod talis non fuit Insabbatus, 
Valdensis, vel pauperum de Lugduno . . . et credo firmiter eum in hoc 
jurasse verum. — Doctrina de modo procedendi contra Hsereticos. (Mar- 
tene, Thesaur. T. V. p. 1801.) 

4 Cone. Lateran. IV. can. iii. — Decret. Gregor. P. P. IX. (Harduin. VII, 



S2 THE WAGER OF LAW. 

accused confessed he subjected them to torture and the 
frightful penance provided by the church, but that when 
they denied their guilt he sent them at once to the stake. 
The compurgatorial process, however, vindicated itself in a 
notable manner when Conrad's cruelties at length aroused 
effective opposition, and he had committed the indiscretion 
of attacking men of station. While King Henry VII. was 
holding the Diet of Mainz, in 1233, Conrad ventured to 
condemn to the flames the Count of Seyne, who was in at- 
tendance upon the court. The nobles and the king at once 
were aroused in his defence, and Conrad's proceedings were 
solemnly pronounced illegal. On his quitting Mainz, in 
disgust, he was assassinated on the road, and the next year, 
at the Diet of Frankfort, the Count of Seyne, with another 
accused noble, the Count of Solms, cleared himself of the 
charge of heresy in the most imposing manner with a train 
of compurgators comprising eight bishops, twelve Cistercian 
abbots, twelve Franciscan and three Dominican monks, and 
a number of Benedictine abbots, clergy, and noble laymen.^ 
Germany at last breathed free, and rejoiced at the overthrow 
of her oppressor. 

The practice of compurgation thus introduced at the foun- 
dation of the Inquisition was maintained to the last by that 
terrible tribunal. ''Our holy mother church," says Siman- 
cas. Bishop of Badajos, a writer of the sixteenth century, 
" can in no way endure the suspicion of heresy, but seeks by 
various remedies to cure the suspect. Sometimes she forces 
them to abjure or to purge theniselves; sometimes she elicits 
the truth by torture, and very often she coerces them with 
extraordinary punishments." Therefore, any one whose 
orthodoxy was doubtful, if he was unwilling to clear himself, 
at the command of the judge, was held to be convicted of 
heresy. By the secular law, he had a year's grace before 

1 Trithem. Chron. Hirsaug. ami. 1233,— Hartzheim Cone. Germ. III. 
542-50. 



PRESCRIBED BY THE INQUISITION. 8^ 

condemnation, but under the papal law he was instantly 
punishable.^ 

Canonical purgation, according to the rules of the Inquisi- 
tion, was indicated when public report rendered a man sus- 
pected, and there was no tangible evidence against him. 
The number of compurgators was left to the discretion of 
the judge, who at the same time decided whether the defi- 
ciency of one, two, or more would amount to a condemna- 
tion. They were to be -peers of the accused; and though 
he was allowed to select them, yet the qualification that they 
were to be good men and ortliodox practically left their 
nomination to the officials — even as the customary accusation 
by the promotor-fiscal was held to be in itself the requisite 
amount of suspicion required as a condition precedent for 
the trial. The greater the suspicion, however, the larger 
was the number of compurgators to be adduced. 

When the accused had chosen his men, and they were 
accepted by the judge, they were summoned, and each one 
examined separately by the Inquisitors as to his acquaintance 
with the defendant — a process by which, it may readily be 
conceived, the terrors of the Holy Office might easily be so 
used as to render them extremely unwilling to become his 
sponsors. They were then assembled together; the accused 
was brought in, the charge against him was read, and he took 
an oath denying it. Each conjurator was then taken sepa- 
rately and sworn as to his belief in the truth or falsity of the 
oath of denegation — and according as they expressed their 
conviction of the veracity of the accused the sentence was 
usually rendered, absolving or condemning him. 

No process of administering compurgation can well be 
conceived more shrewdly adapted to reduce to a minimum 
the chances of acquittal, or to leave the result subject to the 
wishes of the officials. The testimony of the doctors of law, 

' Jacob. Simancse de Cathol. Instit. Tit, Ivi. No. 3,4 (Romse, 1575). 



84 THEWAGEROFLAW. 

both civil and canon, accordingly was that it was blind, 
deceitful, and perilous.^ In fact, it is easy to conceive of 
the difficulty of finding six or ten, or twelve men willing to 
risk their lives and families by standing up in support of any 
one who had fallen into the grasp of the Holy Office. The 
terrible apprehension which the Inquisition spread abroad 
among all classes, and the dread which every man felt of 
being suspected and seized as an accomplice of heresy, are 
unconsciously intimated by Simancas when, arguing against 
this mode of trial, he observes that ''the morals of mankind 
are so corrupt at the present day, and Christian charity has 
grown so cold, that it is almost impossible to find any one 
willing to join in clearing his neighbor, or who does not 
easily believe the worst of him and construe all doubtful 
things against him. When it is enough for the condemnation 
of the accused that the compurgators shall declare that they 
are ignorant or doubtful as to his innocence, w^ho is there 
that will not express doubt when they know that he would 
not have been condemned to purge himself if he had not 
been violently suspected?" For these reasons he says that 
those of Moorish or Jewish stock should never be subjected 
to it, for it is almost impossible not to think ill of them, and, 
therefore, to send them to purgation is simply to send them 
to the stake. ^ 

For all this, there was a lively discussion in the time of 
Simancas, whether if the accused succeeded in thus clearing 
himself, it was sufficient for acquittal. Many Inquisitors 
indeed held to the older practice that the accused should 
first be tortured, when if no confession could be forced 
from him he was put on his purgation ; if he passed safely 
through this, he was then made to abjure the errors of which 
he had not been convicted, and after all this he was punished 

1 Simancae, loc. cit. No. 31. — Villadiego, Fuero Juzgo, p. 318 b. (Madrid, 
1600.) — Both of these authorities stigmatize it as " fragilis et periculosa, 
caeca et fallax." 

2 Simancse, loc. cit. No. 12. 



IN ECCLESIASTICAL COURTS. 85 

at the discretion of the judge. ^ Such an accumulation of 
injustice seems incredible, and yet Simancas feels himself 
obliged to enter into an elaborate discussion to prove its 
impropriety. 

In countries where the Inquisition, had not infected society 
and destroyed all feeling of sympathy between man and man 
this process of purgation was not impossible. Thus, in 
1527, during one of the early persecutions of the reformers 
under Henry VIII., while numbers were convicted, two 
women, Margaret Cowbridge and Margery Bowgas, were 
allowed to clear themselves by compurgators, though there 
were several positive witnesses against them. It is also note- 
worthy that in these cases a portion of the compurgators 
were women. '^ 

In the regular ecclesiastical courts the practice was main- 
tained. When the Council of Constance, in its futile efforts 
at reformation, prepared an elaborate code of discipline, it 
proposed strenuous regulations to correct the all- pervading 
vice of simony. To prevent the sale of benefices it decreed 
absolute deprivation of all preferment as the punishment for 
such offences, and as transactions of the kind were commonly 
accomplished in secret, it ordained that common report 
should be sufficient for conviction; yet it nullified the 
regulation by permitting the accused to clear himself by 
canonical purgation.^ Nearly two centuries later Lancelotti 
speaks of compurgation as the only mode of defence then iii 
use in doubtful cases, where the evidence was insufficient.* 
This applied not only to cases between churchmen but also 
to secular matters subject to ecclesiastical jurisdiction. Gril- 
landus, writing about 1530, speaks of six conjurators of the 

' Simancas, loc. cit. No. 17. 

2 Strype's Ecclesiastical Memorials, I. 87. 

3 Reformator. Constant. Decretal. Lib. v. Tit. ii. cap. I, 3. (Von der 
Hardt, Tom. I. P. xii. pp. 739, 742.) 

* Institut. Jur. Canon. Lib. iv. Tit. ii. | 2. 



86 THE WAGER OF LAW. 

kindred as the customary formula in proceedings for nullity 
of marriage, and mentions an instance personally known to 
him, wherein this procedure was successfully adopted by a 
wife desirous of a divorce from her husband who for three 
years had been rendered impotent by witchcraft, in accord- 
ance with the rules laid down in the canon law for such 
cases/ And among certain orders of monks within the last 
century, questions arising between themselves were settled 
by this mode of trial. ^ 

In England, after the Anglican Church had received 
its final shape under Cranmer, during the reign of Edward 
VI., the custom appears in a carefully compiled body of 
ecclesiastical law, of which the formal adoption was only 
prevented accidentally by the untimely death of the young 
king. By this, a man accused of a charge resting on pre- 
sumptions and incompletely proved, was required to clear 
himself with four compurgators of his own rank, who swore, 
as provided in the decretals of Innocent III., to their belief 
in his innocence.^ 

ACCUSATORIAL CONJURATORS. 

Though not strictly a portion of our subject, the question 
is not without interest as to the power or obligation of the 
plaintiff or accuser to fortify his case with conjurators. 
There is little evidence of such a custom in primitive times, 
but one or two allusions to it in the ''Leges Barbarorum" 
show that it was occasionally practised. Some of the earlier 
texts of the Salic law contain a section providing that in 
certain cases the complainant shall sustain his action with a 
number of conjurators varying with the amount at stake; a 
larger number is required of the defendant in reply; and it 

' P. Grillandi Tract, de Sortileg. Qu. 6, No. 14; Qu. 3, No. 36.— 
Decret. ii. caus. xxx. q. I, can. 2, — Extra, Lib. iv. Tit. xv. can. 7. 

2 Du Cange, loc. cit. 

3 Burnet, Reformation, Vol. II. p. 199 (Ed. 1681). 



ACCUSATORIAL CONJURATORS. 87 

is presumable that the judges weighed the probabilities on 
either side, and rendered a decision accordingly.^ As this 
is omitted in the later revisions of the law, it probably was 
not widely practised, or regarded as of much importance. 
Among the Baioarians, a claimant of an estate produced six 
conjurators who took the oath with him, and whose united 
efforts could be rebutted by the defendant with a single com- 
petent witness.^ These directions are so precise that there 
can be no doubt that the custom prevailed to a limited 
extent among certain tribes, as a natural expression of the 
solidarity of each house or family as distinguished from 
the rest of the sept. That it was, perhaps, more generally 
employed than the scanty references to it in the codes would 
indicate may be inferred from one of the ecclesiastical forge- 
ries which Charlemagne was induced to adopt and prornul- 
gate. According to this, no accusation against a bishop 
could be successful unless supported by seventy-two wit- 
nesses, all of whom were to be men of good repute; forty- 
four were required to substantiate a charge against a priest, 
thirty-seven in the case of a deacon, and seven when a 
member of the inferior grades was implicated.^ Though 
styled witnesses in the text, the number required is so large 
that they evidently could have been only conjurators, with 
whom the complainant supported his oath of accusation, and 
the manufacture of such a law would seem to show that the 
practice of employing such means of substantiating a charge 
was familiar to the minds of men. 

Among the heathen Northmen, as we have seen, every 
pleader, whether plaintiff or defendant, was obliged to take 
a preliminary oath on the sacred stalla hringr, or altar ring, 
duly bathed in the blood of an ox sacrificed for the purpose. 

' Tit. LXXiv. of Herold's text; Cap. Extravagant. No. xviii. of Par- 
dessus. 

2 L. Baioar. Tit. xvi. cap, i. ^ 2. 

3 Capit. Car. Mag. vi. ann. 806, c. xxiii. (Concil. Roman. Silvestri 
PP. I.) 



8S THEWAGEROFLAW. 

This custom was preserved in England, where the Anglo- 
Saxon laws required, except in trivial cases, a "fore-oath" 
from the accuser {forath, ante-juramentwn, pr(EJuramentii-r7i) , 
and William the Conqueror, in his compilation of the laws 
of Edward the Confessor, shows that this was sometimes 
strengthened by requiring the addition of conjurators, who 
were in no sense witnesses, since their oath had reference, 
not to the facts of the case, but solely to the purity of inten- 
tion on the part of the accuser.^ Indications of the same 
procedure are to be found in the collection known as the 
laws of Henry I.'-^ 

In an age of comparative simplicity, it is natural that men 
should turn rather to the guarantees of individual character, 
or to the forms of venerable superstition, than to the subtle- 
ties of legal procedure. Even as the defendant was expected 
to produce vouchers of his truthfulness, so might the plamtiff 
be equally required to give evidence that his repute among 
his neighbors was such as to justify the belief that he would 
not bring a false charge or advance an unfounded claim. 
The two customs appear to arise from the same process of 
reasoning and to be identical in spirit, yet it is somewhat 
singular that, as the compurgatorial oath declined, the prac- 
tice of sustaining the plaintiff's case with conjurators seems 
to have become more common. In Beam the laws of the 
thirteenth century provide that in cases of debt under forty 
sous, where there was no testimony on either side, the 
claimant could substantiate his case by bringing forward one 
conjurator, while the defendant could rebut it with two."'' A 

' E h apelur juna swi^ lui par VII. humes numez, sei siste main, que 
pur haur nel fait ne pur auter chose, si pur sun dreit nun purchacer. — LI. 
Guillel. I. cap. xiv. 

2 Omnis tihlatractetur ante-juramento piano vel observato. — LI. Henrici 
I. Tit. Ixiv. \ I. Ante-juramentum a compellante habeatur, et alter se 
sexto decime sue purgetur; sicut accusator precesserit. — Ibid. Tit. Ixvi. 

3 Yox de Moilaas, Rubr. xxxviii. art. 63. 



ACCUSATORIAL CONJURATORS. 89 

similar rule obtained in England in all actions arising from 
contracts and sales ;^ and in the laws of Soest in Westphalia, 
compiled at the end of the eleventh or the commencement 
of the twelfth century, an accusation of homicide could be 
proved by six conjurators swearing with the prosecutor, 
while if this failed the accused could then clear himself with 
eleven compurgators.^ Throughout Germany, in the thir- 
teenth century, we find the principle of accusing conjurators 
generally received, as is evident from the "juramentum 
supermortuum" already referred to, and other provisions of 
the municipal law.^ So thoroughly, indeed, was this estab- 
lished that, in some places, in prosecutions for highway 
robbery, arson, and other crimes, the accuser had a right to 
require every individual in court, from the judge to the 
spectator, to help him with an oath or to swear that he knew 
nothing of the matter, and even the attorney for the defend- 
ant was obliged to undergo the ceremony.* In Sweden it 
was likewise in use under the name oi jeffniteedf" and in the 
compilation of the laws by Andreas, Archbishop of Lunden, 
in the thirteenth century, there is a curious provision for 
cases of secret murder by which the accuser could force nine 
men successively to undergo the hot-iron ordeal, after which, 
if thus far unsuccessful, he could still force a tenth man to 
trial on producing twelve conjurators to swear to the guilt of 
the accused — these conjurators, in case of acquittal, being 
each liable to a fine of three marks to the accused and as 

1 Bracton. Lib. iv. Tract, vi. cap. 18, § 6. 

2 Statuta Susatensia, No. 10. (Hseberlin, Analecta Medii ^vi, p. 509.) 
— The same provision is preserved in a later recension of the laws of Soest, 
dating apparently from the middle of the thirteenth century (Op. cit. p. 
520). 

8 Jur. Provin. Alaman. cap. cccix. \ 4. (Ed. Schilter.) — Jur. Provin, 
Saxon. Lib. iii. art. %%. — Sachsische Weichb. art. 115. 
* Jur. Provin. Alaman. cap. cccxcviii. W 19, 20. 
5 Du Cange sub voce. 

8* 



90 THEWAGEROFLAW. 

much to the church.^ In Norway and Iceland, m certain 
cases of imputed crime^ the accuser was bound to produce 
ten companions, of whom eight appeared simply as sup- 
porters, while two swore that they had heard the offence 
spoken of, but that they knew nothing about it of their own 
knowledge — the amount of weight attached to which asseve- 
ration is shown by the fact that the accused only required 
two conjurators to clear himself.^ 

Perhaps the most careful valuation of the oath of a plain- 
tiff is to be found in the Coutumier of Bordeaux, which pro- 
vides that, in civil cases not exceeding four sols in amount, 
the claimant should substantiate his case by an oath on the 
Gospels in the Mayor's Court; when from four to twenty 
sols were at stake, he was sworn on the altar of St. Projet or 
St. Antoine ; from twenty sols to fifteen livres, the oath was 
taken in the cemetery of St. Seurin, while for amounts above 
that sum it was administered on the "Fort" or altar of St. 
Seurin himself. Persons whose want of veracity was noto- 
rious were obliged in all cases, however unimportant, to 
swear on the Fort, and had moreover to provide a conjurator 
who with an oath of equal solemnity asserted his belief in the 
truth of his companion.^ 

The custom of supporting an accusatorial oath by conjura- 
tors was maintained in some portions of Europe to a com- 
paratively recent period. Wachter* prints a curious account 
of a trial, occurring in a Suabian court in 1505, which 
illustrates this, as well as the weight which was still attached 
to the oath of a defendant. A woman accused three men on 
suspicion of being concerned in the murder of her husband. 
They denied the charge, but when the oath of negation was 

I Legg. Scan. Provin. Lib. V. c. 57 (Ed. Thorsen, p. 140). 

^ Ideq manus libro imponimus sacro, quod audivimus (crimen rumore 
sparsum), at nobis ignotum est verum sit nee ne. — Jarnsida, Mannhelge, 
cap. xxiy. 

3 Rabanis, Revue Hist, de Droit, 1861, p. 511. 

4 Da Boys, Droit Criminel des Peuples Modernes, H. 595. 



ACCUSATORIAL CONJURATORS. Qf 

tendered to them, with the assurance that, if they were Sua- 
bians, it would acquit them, they demanded time for con- 
sideration. Then the advocate of the widow stepped forward 
to offer the oath of accusation, and two conjurators being 
found willing to support him the accused were condemned 
without further examination on either side. A similar pro- 
cess was observed in the Vehmgericht, or Court of the Free 
Judges of Westphalia, whose jurisdiction in the fourteenth 
and fifteenth centuries became extended over the whole of 
Germany. Accusations were supported by conjurators, and 
when the defendant was a Frei-graff, or presiding officer of 
a tribunal, the complainant was obliged to procure seven 
Frei-schoppen, or free judges, to take the accusatorial oath 
with him.^ 

The latest indication that I have met with of established 
legal provisions of this nature occurs in the custom of Britan- 
ny, as revised in 1539. By this, a man claiming compensation 
for property taken away is to be believed on oath as to his 
statement of its value, provided he can procure companions 
worthy of credence to depose ''qu'ils croyent que le jureur 
ait fait bon et loyal serment."^ Even this last vestige disap- 
pears in the revision of the Coutumier made by order of 
Henry III. in 1580. 

• Freher. de Secret. Judic. cap. xvii. ^ 26. 
2 Anc. Cout. de Bretagne, Tit. Viii. art. 168. 



11. 

THE WAGER OF BATTLE 



When man is emerging from barbarism, the struggle 
between the rising power of reason and the waning supre- 
macy of brute force is full of instruction. Wise in our 
generation, we laugh at the inconsistencies of our forefathers, 
which, rightly considered as portions of the great cycle of 
human progress, are rather to be respected as trophies of the 
silent victory, won by almost imperceptible gradations. 
When, therefore, in the dark ages, we find the administration 
of justice so strangely interrupted by appeals to the sword 
or to chance, dignified under the forms of Christianized 
superstition, we should remember that even this is an im- 
provement on the all-pervading first law of violence. We 
should not wonder that barbarous tribes require to be enticed 
to the acknowledgment of abstract right, through pathways 
which, though devious, may reach the goal at last. When 
the strong man is brought, by whatever means, to yield to 
the weak, a great conquest is gained over human nature; 
and if the aid of superstition is invoked to decide the strug- 
gle, it is idle for us, while enjoying the result, to contemn the 
means which the weakness of human nature has rendered 
necessary to the end. With uneducated nations, as wnth 
uneducated men, sentiment is stronger than reason, and 
sacrifices will be made for the one which are refused to the 
other. If therefore, the fierce warrior, resolute to maintain 
an injustice or a usurpation, can be brought to submit his 
claim to the chances of an equal combat or of an ordeal, he 



94 THE WAGER OF BATTLE. 

has already taken a vast step towards acknowledging the 
empire of right and abandoning the personal independence 
which is incompatible with the relations of human society. 
It is by such indirect means that mere aggregations of indi- 
viduals, each relying on his own right hand, have been 
gradually led to endure regular forms of government, and, 
thus becoming organized nations, to cherish the abstract idea 
of justice as indispensable between man and man. Viewed 
in this light, the ancient forms of procedure lose their ludi- 
crous aspect, and we contemplate their whimsical admixture 
of force, faith, and reason, as we might the first rude engine 
of Watt, or the "Clermont," which painfully labored in the 
waters of the Hudson — clumsy and rough it is true, yet 
venerable as the origin and prognostic of future triumphs. 

There is a natural tendency in the human mind to cast the 
burden of its doubts upon a higher power, and to relieve 
itself from the effort of decision by seeking in the unknown 
the solution of its difficulties. Between the fetish worship- 
pers of Congo and the polished sceptics who frequented the 
salon of Mile, le Normant, the distance, though great, is 
bridged over by this common weakness ; and whether the 
information sought be of the past or of the future, the 
impulse is the same. When, therefore, in the primitive 
mallum, the wisdom of the 7'achinborgs was at fault, and the 
absence or equal balance of testimony rendered a verdict 
difficult, what was more natural than to appeal for a decision 
to the powers above, and to leave the matter to the judgment 
of God?^ Nor, with the warlike instincts of the race, is it 

1 Thus, as late as the thirteenth century, the municipal law of Southern 
Germany, in prescribing the duel for cases destitute of testimony, says with 
a naive impiety: "Hoc ideo statutum est, quod causa haec nemini cognita 
est quam Deo, cujus est eandem juste decidere." Logical enough, if the 
premises be granted! Even as late as 1617, August Viescher, in an elabo- 
rate treatise on the judicial duel, expressed the same reliance on the divine 
interposition: " Dei enim hoc judicium dicitur, soli Deo causa terminanda 



THE DUEL AND THE B ATTL E - O RD E AL. 95 

surprising that this appeal should be made to the God of 
battles, to whom, whether they addressed him as Odin or 
Sabaoth, they looked in every case for a special interposition 
in favor of innocence. The curious mingling of procedure, 
in these untutored seekings after justice, is well illustrated in 
a form of process prescribed by the primitive Bavarian law. 
A man comes into court with six conjurators to claim an 
estate; the possessor defends his right with a single witness, 
who m.ust be a landholder of the vicinage. The claimant 
then attacks the veracity of the witness — "Thou hast lied 
against me. Grant me the single combat, and let God make 
manifest whether thou hast sworn truth or falsehood;"^ and, 
according to the event of the duel, is the decision as to the 
truthfulness of the witness and the ownership of the pro- 
perty. 

In discussing the judicial combat, it is important to keep 
in view the wide distinction between the wager of battle as a 
judicial institution, and the custom of duelling which has 
obtained with more or less regularity among all races and at 
all ages. When the Horatii met the Curiatii, or when An- 
tony challenged Octavius to decide the empery of the world 
with their two swords, or when Richard II. in the glow of 
youth, in 1384, proposed to end the war commenced between 
Philippe de Valois and Edward III. by a single combat be- 
tween himself and his antagonist Charles VI., ^ or when the 

committitur, Deo igitur authore singulare hoc certamen suscipiendum, ut 
justo judicio adjutor sit, omnisque spes ad solam summse providentiam 
Trinitatis referenda est." — (Vischer Tract. Juris Duellici Universi, p. 109. ) 
This work is a most curious anachronism. Viescher was a learned juris- 
consult who endeavored to revive the judicial duel in the seventeenth cen- 
tury by writing a treatise of 700 pages on iis principles and practice. He 
exhibits the wide range of his studies by citations from no less than six 
hundred and seventy-one authors, and manages to convey an incredibly 
small amount of information on the subject. 

' L. Baioar. Tit. xiv. c. i. § 2. 

2 Pike, History of Crime in England, I. 393, 499. 



96 THE WAGER OF BATTLE. 

ancient Hindus were in the habit of averting the carnage of 
battles in the same manner^ — these were simply expedients to 
save the unnecessary effusion of blood, or to gratify indivi- 
dual hate. When the raffing of the times of Henri Quatre, 
or the modern fire-eater, has wiped out some imaginary stain 
in the blood of his antagonist, the duel thus fought, though 
bearing a somewhat closer analogy to the judicial combat, 
is not derived from it, but from the right of private ven- 
geance which was common to all the barbarian tribes, and 
from the cognate right of private warfare which was the 
exclusive privilege of the gentry during the feudal period.^ 
The established euphuistic formula of demanding "the satis- 
faction of a gentleman," thus designates both the object of 
the custom and its origin. The abolition of private wars 
gave a stimulus to the duel at nearly the period when the 
judicial combat fell gradually into desuetude. The one thus 
succeeded to the other, and, being kindred in form, it is not 
surprising that for a time there was some confusion in the 
minds of men respecting their distinctive characteristics. 
Yet it is not difficult to draw the line between them. The 
object of the one was vengeance and reparation ; the theory 
of the other was the discovery of truth, and the impartial 
ministration of justice. 

It is easy to multiply examples illustrating this. John 
Van Arckel, a knight of Holland, followed Godfrey of Bouil- 
lon to the first crusade. When some German forces joined 
the army, a Tyrolese noble, seeing Van Arckel's arms dis- 
played before his tent, and recognizing them as identical 
with his own, ordered them torn down. The insult was 
flagrant, but the injured knight sought no immediate satisfac- 

' Ayeen Akbery, II. 324. 

2 The early edicts directed against the duel proper (Ordonn, Charles IX., 
an. 1566; Henri IV., an, 1602 — in Fontanon I. 665) refer exclusively to 
the noblesse, and to those entitled to bear arms, as addicted to the prac- 
tice, while the judicial combat, as we shall see, was open to all ranks, and 
was enforced indiscriminalely upon all. 



IT IS PURELY A JUDICIAL PROCESS. 97 

tion for his honor. He laid the case before the chiefs of the 
crusade as a judicial matter; an examination was made, and 
both parties proved their ancestral right to the same bearings. 
To decide the conflicting and incompatible pretensions, the 
judges ordered the judicial combat, in which Van Arckel 
deprived his antagonist of life and quarterings together, and 
vindicated his claim to the argent 2 bars gules, which in 
gratitude to Heaven he bore for eight long years in Palestine. 
This was not a quarrel on a punctilio, nor a mode of obtain- 
ing redress for an insult, but an examination into a legal 
question which admitted of no other solution according to 
the manners of the age.^ When, after the Sicilian Vespers, 
the wily Charles of Anjou was sorely pressed by his victori- 
ous rival Pedro I. of Aragon, and desired to gain time in 
order to repress a threatened insurrection among his penin- 
sular subjects, he sent a herald to Don Pedro to accuse him 
of bad faith in having commenced the war without defiance. 
The fiery Catalan fell into the snare, and in order to clear 
himself of the charge, which was not ill-founded, he offered 
to meet his accuser in the champ-clos. Both parties swore 
upon the Gospels to decide the accusation by combat, a 
hundred on each side, in the neutral territory of Bordeaux, 
which was then under the English crown; and Charles, 
having obtained the necessary suspension of arms, easily 
found means to prevent the hostile meeting. ^ Though prac- 
tically this challenge may differ little from that of Antony 
— its prize in reality being the crown of the Two Sicilies — 
still its form and purport were those of the judicial duel, the 
accused offering to disprove the charge of mala fides on the 
body of his accuser. So, when Francis I., in idle bravado, 

• Chron. Domin. de Arkel (Matth^ei Analect. VIII. 296). 

2 Ramon Muntaner, cap. Ixxi. — Nothing more picturesquely romantic is 
to be found in the annals of chivalry than Muntaner's account of Don 
Pedro's ride to Bordeaux and his appearance in the lists, where the senes- 
chal was unable to guarantee him a fair field. 

9 



98 THEWAGEROFBATTLE. 

flung down the gauntlet to Charles V., it was not to save half 
of Europe from fire and sword, but simply to absolve him- 
self from the well-grounded charge of perjury brought 
against him by the Emperor for his non-observance of the 
treaty of Madrid. This again, therefore, wore the form of 
the judicial combat, whatever might be the motiyes of per- 
sonal hate and craving of notoriety which influenced the last 
imitator of the follies of chivalry.-^ The celebrated duel, 
fought in 1547, between Jarnac and La Chastaigneraye, so 
piteously deplored by honest old Brantome, shows the dis- 
tinction maintained to the last. It was conducted with all 
judicial ceremonies, in presence of Henry II., not to settle 
a point of honor, but to justify Jarnac from a disgusting 
accusation brought by his adversary. Resulting most unex- 
pectedly in the death of La Chastaigneraye, who was a favor- 
ite of the king, the monarch was induced to put an end to 
all legalized combats, though the illegal practice of the pri- 
vate duel not only continued to flourish, but increased 
beyond all precedent during the succeeding half century — 
Henry IV. having granted in twenty-two years no less than 
seven thousand letters of pardon for duels fought in contra- 
vention of the royal edicts. Such a mode of obtaining 
*' satisfaction" is so repugnant to the spirit of our age that it 
is perhaps not to be wondered at if its advocates should en- 
deavor to affiliate it upon the ancient wager of battle. Both 
relics of barbarism, it is true, are developments from the 
same primitive habits and customs, yet they are essentially 
distinct and have coexisted as separate institutions ; and, 
however much occasionally intermingled by the passions of 
periods of violence, they were practised for different ends, 
and were conducted with different forms of procedure. We 
have only to deal with the combat as a strictly judicial pro- 
cess, and shall, therefore, leave untouched the vast harvest 

J Du Bellay, Memoires, Liv. III. 



ANTIQUITY OF THE JUDICIAL DUEL. 99 

of curious anecdote afforded by the monomachial propensi- 
ties of modern times. 



ORIGIN OF THE JUDICIAL DUEL. 

The mediaeval panegyrists of the wager of battle sought 
to strengthen its title to respect by affirming that it was as 
old as the human race, and that Cain and Abel, imable to 
settle their conflicting claims in any other mode, agreed to 
leave the decision to the chances of single combat; but we 
will not enter into speculations so recondite. It is enough 
for us to know that all the tribes who settled in Europe 
practised it with so general a unanimity that its origin must 
be sought at a period anterior to their separation from the 
common stock, although it has left no definite traces in the 
written records which have reached us of the Aryans who 
remained in Asia.^ 

That some vague notions of Divine justice making itself 
manifest through the sword must have existed in prehistoric 
Hellenic times is apparent from Homer's elaborate descrip- 
tion of the duel between Menelaus and Paris. This has all 
the characteristics of a judicial combat to decide the guilt or 
innocence of the claimants for the possession of the fair 
Helen. A preliminary sacrifice is offered to Zeus ; Hector 
and Ulysses measure out the ground ; lots are cast to decide 
which of the antagonists shall have the first throw of the 
spear; and the assembled armies put up a prayer to Zeus, 
entreating him to send to Hades the guilty one of the two 
combatants.^ This is not merely a device to put an end to 
the slaughter of brave warriors — it is an appeal to Heaven 
to elicit justice by means of arms. 

' An outlying fragment of the same belief is to be seen in the, ancient 
Japanese practice of deciding knotty questions by the judicial duel. See 
Griffis's Mikado's Empire, New York, 1876, p. 92. 

s Iliad. III. 276-32,3. 



lOO THE WAGER OF BATTLE. 

Although Caesar makes no mention of such a custom in 
Gaul, it evidently prevailed among the Celtic tribes. Livy 
describes how some Spaniards seized the opportunity of a show 
of gladiators, given by Scipio, to settle various civil suits by 
combat, and he proceeds to particularize a case in which two 
rival cousins decided in this manner a disputed question in 
the law of descent, despite the earnest remonstrances of the 
Roman commander.^ Among the Irish Celts, at their ap- 
pearance in history, we find the judicial duel established 
with fixed regulations. In the Senchus Mor, a code claim- 
ing to be compiled under the supervision of St. Patrick, the 
delay of five days in a distress is explained by the history of 
a combat between two long previous in Magh-inis. "When 
they had all things ready for plying their arms, except a 
witness alone, they met a woman at the place of combat, 
and she requested of them a delay, saying, ' If it were my 
husband that were there I would compel you to delay.' 'I 
would delay,' said one of them, ' but it would be prejudicial 
to the man who sues me ; it is his cause that would be de- 
layed.' *I will delay,' said the other. The combat was 
then put off, but they did not know till when it was put off, 
until Conchubhur and Sencha passed judgment respecting it; 
and Sencha asked, ' What is the name of this woman?' 
* Cuicthi,' (five) said she, Ms my name.' 'Let the combat 
be delayed,' said Sencha, 'in the name of this woman for 
five days.' '"* The combative ardor of the Feini, indeed, 
was so strong, and the appeal to the wager of battle so gene- 
ral, that on their conversion to Christianity they found it 
difficult to understand that the holy ministers of Christ 
should be restricted from vindicating their rights by arms, 
and St. Patrick, in a synod held in 456, was obliged to 
threaten his clergy with expulsion from the church if they 
endeavored to escape by appeal to the sword from settling 

1 Liv. xxvii. 21. 2 Senchus Mor, I. 251. 



ANTIQUITY OF THE JUDICIAL DUEL. lOI 

obligations which they had incurred by giving security for 
heathens.^ 

This prevalence of the wager of battle among the Irish 
Celts renders probable its existence likewise among the early 
inhabitants of Britain. If so, the long domination of the 
Romans was doubtless sufficient to extinguish all traces of it. 
The Welsh laws attributed to Hoel Dda in the early part of 
the tenth century, which are exceedingly minute and precise 
in their directions as to all forms of legal procedure, make 
no allusion to it whatever. It is true that an ancient collec- 
tion of laws asserts that the code of Dyvnwal-moel-mud, a 
British king, prescribed the ordeals of battle, of hot iron 
and of boiling water, and that Hoel in his legislation con- 
sidered them unjust, abrogated them, and substituted the 
proof by men, or raith? This legend, however, is very 
apocryphal. There is no allusion to such customs in the 
Welsh codes up to the close of the twelfth century, and the 
few indications which occur in subsequent collections would 
seem to indicate that these were rather innovations due to 
the influence of the English Conquest than revivals of ancient 
institutions. 

Among the Norrsena branch of the Teutons the wager of 
battle can be traced back to the realm of legend and tradition. 
Saxo Grammaticus informs us that about the Christian era 
Frotho III , or the Great, of Denmark, ordered the employ- 
ment of the duel to settle all controversies, preferring that 
his warriors should accustom themselves to rely, not on elo- 
quence, but on courage and skill f and however doubtful the 
chronology may be, the tradition shows that the origin of 
the custom was lost in the depths of antiquity. Among the 
heathen JSorsemen, indeed, the holm-gang, or single combat, 
was so universal an arbitrator that it was recognized as con- 

• Synod. S. Patricii ann. 456, c, 8. 

2 Anomalous Laws, Book xiv. chap. xiii. \ 4. (Owen II. 623.) 

2 Saxon. Grammat. Hist. Dan. Lib. v. 



T02 THK WAGER OF BATTLE. 

ferring a right where none pre-existed. Any athlete, who 
confided in his strength and dexterity with his weapons, 
could acquire property by simply challenging its owner to 
surrender his land or fight for it. When Iceland, for in- 
stance, was in process of settlement, Kraku Hreidar sailed 
thither, and on sighting land invoked Thor to assign to him 
a tract of ground which he would forthwith acquire by duel. 
He was shipwrecked on reaching the shore, and was hospi- 
tably received by a compatriot named Havard, with whom 
he passed the winter. In the spring he declared his purpose 
of challenging Saemund Sudureyska for a sufficient holding, 
but Havard dissuaded him, arguing that this mode of ac- 
quiring property rarely prospered in the end, and Eirek of 
Goddolom succeeded in quieting him by giving him land 
enough. Others of these hardy sea-rovers were not so 
amenable to reason as Kraku. When Hallkell came to Ice- 
land and passed the winter with his brother Ketelbiorn, the 
latter offered him land on which to settle, but Hallkell dis- 
dained so peaceful a proposition, and preferred to summon 
a neighbor named Grim to surrender his property or meet 
him in the holm-gang. Grim accepted the defiance, was 
slain, .and Hallkell was duly installed as his heir. A varia- 
tion of the custom is illustrated by the case of HroUeif, who 
after some years' settlement grew dissatisfied with his hold- 
ing, and challenged his neighbor Eyvind to an exchange of 
properties or a combat, alternatives of which the peace-loving 
Eyvind accepted the former.^ The Saga of Egil ^kallagrims- 
son speaks of a noted duellist known as Ljot the Pale, who 
had come to the district a landless stranger, and had grown 
wealthy by thus challenging proprietors and taking their 
lands, but who met his fate at the hands of Egil, who, while 
travelling, came to the place where Ljot was about to engage 
in a holm-gang with a weaker antagonist. Egil volunteered 
to take his place, and promptly slew Ljot. The holm-gang 

' Islands Landnamabok, ill. vii.; v. xii. xiii. See also ii. vi. and xiii. 



AUTOCHTHONIC AMONG THE BARBARIANS. I03 

was SO named because the battle was usually fought on a 
small island or holm; and that it was regarded as an appeal 
to the gods is manifested by the custom of the victor sacri- 
ficing an ox as soon as he left the spot.^ 

It is true that Tacitus makes no allusion to such a custom 
among the Germans of his time, a passage which is fre- 
quently quoted to that effect being in reality only a descrip- 
tion of a mode of divination in which, at the beginning of a 
war, one of the enemy was captured and made to fight with 
a chosen champion, the result of the combat being taken to 
foreshadow the event of the contest.^ The object of Taci- 
tus, however, was not to excite the curiosity of his country- 
men, but rather to contrast their vices with the uncivilized 
virtues of the Germans, and his silence on this point is not 
a negative evidence of weight in comparison with the posi- 
tive proofs which exist with regard to kindred tribes. Be 
this as it may, as soon as we obtain an insight into their cus- 
toms from written laws, we find the wager of battle every- 
where recognized. The earliest of these is the code of the 
Burgundians, collected by King Gundobald towards the 
close of the fifth century, and in this the duel occupies a 
place so conspicuous that it obtained in time the name of 
Lex Gundebalda or Loy Gombette, giving rise to a belief 
that it was of Burgundian origin. 

In the ordinary texts of the Salic law, no mention is made 
of it, but in one manuscript it is alluded to as a regular form 
of procedure.^ This silence, however, does not justify the 
conclusion that the battle ordeal was not practised among 
the Franks. Enough instances of it are to be found in their 



1 Keyser's Religion of the Northmen, Pennock's Translation, p, 245-7. 

2 Tacit, de Mor. Germ. x. Du Cange refers to a passage of Paterculus 
as proving the existence of the judicial duel among the Germans (Lib. II. 
cap. 118), but it seems to me only to refer to the law of the strongest. 

3 Si tamen non potuerit adprobare . . . . et postea, si ausus fuerit, pug- 
net. — Leyden MS. — Capit, Extravagant. No. xxviii. of Pardessus. 



I04 THE WAGER OF BATTLE. 

early history to show that it was by no means uncommon ;^ 
...and, at a later period, the same absence of reference to it is 
observable in the Lex Emendata of Charlemagne, though 
the capitularies of that monarch frequently allude to it as a 
legal process in general use. The off- shoots of the Salic 
law, the Ripuarian, Allemannic, and Bavarian codes — which 
were compiled by Thierry, the son of Clovis, revised success- 
ively by Childebert and Clotair II., and put into final shape 
by Dagobert I. about the year 630 — in their frequent refer- 
ence to the '* campus," show how thoroughly it pervaded 
the entire system of Germanic jurisprudence. The Lom- 
bards were, if possible, even more addicted to its use. Their 
earliest laws, compiled by King Rotharis in 643, seventy-six 
years after their occupation of Italy, make constant reference 
to it, and their readiness to refer to its decision the most 
conspicuous cases is shown in the story of Queen Gunde- 
berga, the wife of Ariovaldus, who was the immediate pre- 
decessor of Rotharis. Adalulf, a disappointed lover, brought 
against her a charge of conspiracy which induced Ariovaldus 
to cast her in prison, where she lay for three years, until 
Clotair the Great, to whom she was of kindred, sent an em- 
bassy to obtain her release. Diplomacy was of no avail, and 
all that the Frankish envoys could accomplish was to secure 
for her a trial by single combat, in which a champion named 
Pitto overcame Adalulf the accuser, and Gundeberga was 
restored to the throne with her innocence recognized.^ In- 
deed, the tenacious hold which it maintained on the venera- 
tion of the Lombards is shown by the fruitless efforts of 
Rotharis and his successors to restrict its employment and 
to abrogate it. Thus he forbids its use in some cases of im- 
portance, substituting conjurators, with an marked expression 

^ Gregor. Turon. Hist. Franc. Lib. vii. c. xiv. ; Lib. x. c. x. — Aimoini 
Lib. IV. c. ii. 
^ Aimoini Lib. iv. cap. x. 



ANCIENT BRITAIN. I05 

of disbelief, which shows how little confidence was felt in 
its results by enlightened men.^ The next lawgiver, King 
Grimoald, decreed that thirty years' possession of either 
land or liberty relieved a defendant from maintaining his 
title by battle, the privilege of employing conjurators being 
then conceded to him.^ In the succeeding century. King 
Liutprand sought to abolish it entirely, but finding the pre- 
judices of his people too strong to be overcome, he placed 
on record in the statute-book a declaration of his contempt 
for it and a statement of his efforts to do away with it, while 
he was obliged to content himself with limiting the extent of 
its application, and diminishing the penalties incurred by the 
defeated party. ^ 

While the laws of the Angles, the Saxons, and the Fris- 
ians bear ample testimony to the general use of the wager of 
battle,* it is not a little singular that the duel appears to have 
been unknown among the Anglo-Saxons. Employed so 
extensively as legal evidence throughout their ancestral re- 
gions, by the kindred tribes from which they sprang, and 
by the Danes and Norwegians who became incorporated 
with them; harmonizing moreover with their general habits 
and principles of action, it would seem impossible that they 
should not likewise have practised it. I can offer no expla- 
nation of the anomaly, and can only state the bare fact that 

1 Quia absurdum et impossible videUir esse ut tarn grandis causa sub uno 
scutu per pugnam dirimatur. — L. Longobard. Lib. ii. Tit. Iv. §^ 1,2, 3. 

2 L. Longobard, Lib. ii. Tit. xxxv. ^§ 4, 5. 

3 Gravis causa nobis esse comparuit, ut sub uno scuto, per unam pug- 
nam, omnem suam substantiam homo amittat Quia incerti sumus de 

judicio Dei; et multos audivimus per pugnam sine jusiitia causam suam 
perdere. Sed propter consuetudinem gentis nostrse Longobardorum legem 
impiam vetare non possumus. — (L. Longobard. Lib. I. Tit. ix. ^ 23.) 
Muratori states that the older MSS. read " legem istam," in place of "im- 
piam," as given in the printed texts, w^hich would somewhat weaken the 
force of Liutprand's condemnation. 

* L. Anglinr. et Werinor. Tit. I. cap. 3; Tit. XV.— L. Saxon. Tit. XV. — 
L. Frision. Tit. v. c. i. ; Tit. xi. c. 3. 



Io6 THE WAGER OF BATTLE. 

the judicial combat is not referred to in any of the Anglo- 
Saxon or Anglo-Danish codes. ^ There seems, indeed, to 
be no reason to doubt that its introduction into English 
jurisprudence dates only from the time of William the Con- 
queror.'^ 

The Goths, while yet untainted by the influence of Rome, 
were no less given to the employment of the judicial duel 
than their Teutonic kindred, and Theodoric vainly endea- 
vored to suppress the custom among those of his subjects 
who had remained in Pannonia.^ That no trace of it is to 

1 In Home's Myrror of Justice (cap. II, sect. 13), a work which is sup- 
posed to date from the reign of Edward II., there is a form of appeal of 
treachery " qui fuit trove en vielx rosles del temps du Roy Alfred," in 
which the appellant offers to prove the truth of his charge with his body; 
but no confidence can be placed in the accuracy of the old lawyer. Some 
antiquarians have been inclined to assume that the duel was practised 
among the Anglo-Saxons, but the statement in the text is confirmed by the 
authority of Mr. Pike (Hist of Crime in England, I. 448), whose ex- 
haustive researches into the original sources of English jurisprudence ren- 
der his decision virtually final. 

In the Saga of Olaf Tryggvesson it is related that he was chosen by an 
English queen named Gyda for her husband, to the great displeasure of 
Alfin a previous pretender to her hand, who challenged him thereupon, 
because " It was then the custom in England, if two strove for anything, 
to settle the matter by single combat" (Laing's Heimskringla, I. 400). 
Snorro Sturleson, however, can hardly be regarded as of much authority 
on a point like this; and as Gyda is represented as daughter of a king of 
Dublin, the incident, if it occurred at all, may have taken place in Ireland. 

2 A charter issued by William, which appears to date early in his reign, 
gives the widest latitude to the duel both for his French and Saxon sub- 
jects. — (L. Guillelmi Conquest, ii, ^| I, 2, 3. Thorpe, I. 488.) Another 
law, however, enabled a Norman defendant to decline the combat when a 
Saxon was appellant. "Si Francigena appellaverit Anglum. . . . Anglus 
se defendat per quod melius voluerit, aut judicio ferri, aut duello. ... Si 
autem Anglus Francigenam appellaverit et probare voluerit, judicio aut 
duello, volo tunc Francigenam purgare se Sacramento non fracto." — (Ibid, 
in. ^12. Thorpe, I. 493.) Such immunity seems a singular privilege 
for the generous Norman blood. 

' Cassiodor. Variar. Lib. in. Epist. xxiii., xxiv. 



THE GOTHS. I07 

be found among the extant laws of both Ostrogoths and 
Wisigoths, framed subsequently to their settlement in Italy, 
France, and Spain, is easily explained. The effect upon the 
invaders of the decaying but still majestic civilization of 
Rome, the Byzantine education of Theodoric, the leader of 
the Ostrogoths, and his settled policy of conciliating the 
Italians by maintaining as far as possible the existing state of 
society, preclude any surprise that no allusion to the practice 
should occur in the short but sensible code known as the 
** Edict of Theodoric," which shows how earnestly that en- 
lightened conqueror endeavored to fuse the invaders and 
the vanquished into one body politic.^ With regard to the 
Wisigoths, we must remember that early conversion to Chris- 
tianity and long intercourse with civilization had already 
worn off much of the primitive ferocity of a race which could 
produce in the fourth century such a man as Ulphilas. They 
were the earliest of the invaders who succeeded in forming 
a permanent occupation of the conquered territories; and 
settling, as they did, in Narbonensian Gaul and Spain while 
the moral influence of Rome was yet all powerful, the im- 
perial institutions exercised a much greater effect upon them 
than on the subsequent bands of Northern barbarians. Ac- 
cordingly, we find their codes based almost entirely upon 
the Roman jurisprudence, with such modifications as vyere 
essential to adapt it to a ruder state of society. Their nicely 
balanced provisions and careful distinctions offer a striking 
contrast to the shapeless legislation of the races that followed, 
and neither the judicial combat nor canonical compurgation 
found a place in them. Even the vulgar ordeal would ap- 
pear to have been unknown until a period long subsequent 

J An Epistle from Theodoric to the Gaulish provinces, which he had 
just added to his empire, congratulates them on their return to Roman 
laws and usages, which he orders them to adopt without delay. Its whole 
tenor shuws his thorough appreciation of the superiority of the Imperial 
codes over the customs of the barbarians, and his anxiety for settled prin- 
ciples of jurisprudence (Cassiodor. Variar. Lib, ill. Epist. xvii). 



Io8 THE WAGER OF BATTLE. 

to the conquest of Aquitaine by Clovis, and but little ante- 
rior to the overthrow of the Gothic kingdom of Spain by 
the Saracens. But even as in Italy the Lombard domination 
destroyed the results of Theodoric's labors, so in France the 
introduction of the Frankish element revived the barbarian 
instincts, and in the celebrated combat before Louis-le-De- 
bonnaire, between Counts Bera and Sanila, who were both 
Goths, we find the *'pugna duorum" claimed as an ancient 
privilege of the r^ce, with the distinction of its being eques- 
trian, in accordance with Gothic usages, and so thoroughly 
was the guilt of Bera considered to be proved by his defeat, 
that his name became adopted in the Catalan dialect as a 
synonym of traitor.^ 

Nor was the wager of battle confined to races of Celtic or 
Teutonic origin. The Slavic tribes, as they successively 
emerge into the light of history, show the same tendency to 
refer doubtful points of civil and criminal law to the arbi- 
trament of the sword. The earliest records of Bohemia, 
Poland, Servia, Silesia, Moravia, Pomerania, Lithuania, and 
Russia present evidences of the prevalence of the system.^ 

EXTENSION OF THE CUSTOM. 

The wager of battle thus formed part of the ancestral in- 
stitutions of all the races who founded the nations of Europe. 
With their conversion to Christianity the appeal was trans- 
ferred from the heathen gods to Jehovah, Christ, and the 
saints, and popular confidence in the arbitrament of the 
sword was rather strengthened than diminished. Enlight- 
ened law-givers not only shared, to a greater or less ex- 
tent, in this confidence, but were also disposed to regard 
the duel with favor as the most practical remedy for the 

' Ermold. Nigell. de Reb. Gest. Ludov. Pii Lib, iii. — Astron, Vit. 
Ludov. Pii cap. xxxiii. — Marca Hispanica, Lib. ill. c. 21. 
2 Konigswartcr, op. cit, p. 224. 



CAUSES OF ITS EXTENSION. I09 

crime of false swearing which was everywhere prevalent. 
Thus Gundobald assumes that its introduction into the Bur- 
gundian code arose from this cause ;^ Charlemagne urged its 
use as greatly preferable to the shameless oaths which were 
taken with so much facility;^ while Otho II., in 983, ordered 
its employment in various forms of procedure for the same 
reason,^ It can hardly be a source of surprise, in view of 
the warlike manners of the times, and of the enormous evils 
for which a palliative was sought, that there was felt to be 
advantage in this mode of impressing upon principals and 
witnesses the awful sanctity of the oath, which entailed upon 
them the liability of supporting their asseverations by under- 
going the risks of a combat rendered doubly solemn by 
imposing religious ceremonies. 

Various causes were at work to extend the application of 
the judicial duel to all classes of cases. In the primitive 
codes of the barbarians, there is no distinction made between 
civil and criminal law. Bodily punishment being almost 
unknown, except for slaves, and nearly all infractions of the 
law being visited with fines, there was no necessity for such 
niceties, the matter at stake in all cases being simply money 
or money's worth. Accordingly, we find the wager of bat- 
tle used indiscriminately, both as a defence against accusa- 
tions of crime, and as a mode of settling cases of disputed 
property, real and personal. Yet some of the earlier codes 
refer to it but seldom. The Salic law, as we have seen, 
hardly recognizes its existence ; the Ripuarian code alludes 

' L. Burgund. Tit. xlv, — The remedy, however, would seem to have 
proved insufficient, for a subsequent enactment provides an enormous fine 
(300 solidi) to be levied on the witnesses of a losing party, by way of 
making them share in the punishment. "Quo facilius in posterum ne 
quis audeat propria pravitate mentire." — L. Burgund. Tit. Ixxx. | 2. The 
position of a witness in those unceremonious days was indeed an unenvia- 
ble one. 

2 Capit. Car. Mag. ex Lege Longobard. c. xxxiv. (Baluze). 

3 L. Longobard. Lib. II. Tit. iv. § 34. 

10 



no THEWAGEROFBATTLE. 

to it but four times, and that of the Alamanni but six times. 
In others, like the Baioarian, it is appealed to on almost every 
occasion, and among the Burgundians we may assume, from 
a remark of St. Agobard, that it superseded all evidence and 
rendered superfluous any attempt to bring forward witnesses.^ 
This variation is probably rather apparent than real, and if 
in any of these bodies of laws there were originally substan- 
tial limitations on its use, in time they disappeared, for it 
was not difficult to find expedients to justify the extension of 
a custom which accorded so perfectly with the temper of the 
age. 'How little reason was requisite to satisfy the bellige- 
rent aspirations of justice is shown by a curious provision in 
the code of one of the Frisian tribes, by which a man unable 
to disprove an accusation of homicide was allowed to charge 
the crime on whomsoever he might select, and then the 
question between them was decided by combat.^ 

The elasticity, in fact, with which the duel lent itself to 
the advantage of the turbulent and unscrupulous had no little 
influence in extending its sphere of action. This feature in 
its history is well exemplified in a document containing the 
proceedings of an assembly of local magnates, held in the 
year 88S, to decide a contention concerning the patronage of 
the church of Lessingon. After the testimony on one side 
had been given, the opposite party commenced in reply, 
when the leaders of the assembly, seizing their swords, 
vowed that they would affirm the truth of the first pleader's 
evidence with their blood before King Arnoul and his court 
* — and the case was decided without more ado.^ The strong 
and the bold are apt to be the ruling spirits in all ages, and 
were emphatically so in those periods of scarcely curbed 
violence when the jurisprudence of the European common- 
wealths was slowly developing itself. 

' Lib, adversus Legem Gundobadi cap. x. 

2 L. Frision. Tit. xiv. ^ 4. 

3 Goldast. Antiq. Alaman. chart, Ixxxv. 



CHALLENGING WITNESSES. HI 

It is no wonder therefore that means were readily found 
for extending the jurisdiction of the wager of battle as widely 
as possible. One of the most fruitful of these expedients 
was the custom of cliallenging witnesses. The duel was a 
method of determining questions of perjury, and there was 
nothing to prevent a suitor, who saw his case going adversely, 
from accusing an inconvenient witness of false swearing, and 
demanding the '' campus" to prove it — a proceeding which 
adjourned the main case, and likewise decided its result. 
This summary process of course brought every action within 
the jurisdiction of force, and deprived the judges of all au- 
thority to control the abuse. That it obtained at a very early 
period is shown by a form of procedure occurring in the 
Bavarian law, already referred to, by which the claimant of 
an estate is directed to fight, not the defendant, but his wit- 
ness;' and in 819 a capitulary of Louis-le-Debonnaire gives 
a formal privilege to the accused on a criminal charge to 
select one of the witnesses against him with whom to decide 
the question in battle.'' It is easy therefore to understand 
the custom, prescribed in some of the codes, by which wit- 
nesses were required to come into court armed, and to have 
their weapons blessed on the altar before giving their testi- 
mony. If defeated they were fined, and were obliged to 
make good to the opposite party any damage which their 
testimony, had it been successful, would have caused him.^ 

Nor was this merely a temporary extravagance. Late in 
the thirteenth century, after enlightened legislators had been 
strenuously and not unsuccessfully endeavoring to limit the 
abuse of the judicial combat, the challenging of witnesses 
was still the favorite mode of escaping legal condemnation.* 
Even in the fourteenth century, the municipal law of Rheims, 
which allowed the duel between principals only in criminal 

' L. Baioar. Tit. xvi. cap. i. g 2. 

2 Capit. Ludov. Pii ann. 819, cap. xv. 

3 L. Baioar. Tit. xvi. c. 5. 

4 Beaumanoir, Coutumes du Beauvoisis, chap. Ixi. ^ 58. 



112 THE WAGER OF BATTLE. 

cases, permitted witnesses to be indiscriminately challenged 
and forced to fight, affording them the privilege of employ- 
ing champions only on the ground of physical infirmity or 
advanced age.^ A still more bizarre extension of the prac- 
tice, and one which was most ingeniously adapted to defeat 
the ends of justice, is found in a provision of the English 
law of the thirteenth century, allowing a man to challenge 
his own vvitnesses. Thus in many classes of crimes, such as 
theft, forgery, coining, &c., the accused could summon a 
*^ warrantor" from whom he professed to have received the 
articles which formed the basis of the accusation. The war- 
rantor could scarcely give evidence in favor of the accused 
without assuming the responsibility himself. If he refused, 
the accused was at liberty to challenge him ; if he gave the 
required evidence, he was liable to a challenge from the 
accuser.^ Another mode extensively used in France about 
the same time was to accuse the principal witness of some 
crime rendering him incapable of giving testimony, when he 
was obliged to dispose of the charge by fighting, either 
personally or by champion, in order to get his evidence ad- 
mitted.^ 

It is not easy to imagine any cases which might not thus 
be brought to the decision of the duel ; and the evidence of 
its universality is found in the restriction which prevented 
the appearance as witnesses of those who could not be com- 
pelled to accept the combat. Thus the testimony of women 
and ecclesiastics was not receivable in lay courts in suits 
where appeal of battle might arise;* and when in the twelfth 

1 Lib. Pract. de Consuetud. Reniens. §.§ 14, 40 (Archives L^gislat. de 
Reims, Pt. i. pp. 37, 40). 

2 Bracton de Legibus Angl. Lib. iii. Tract, ii. cap. xxxvii. ^ 5. — Fleta, 
Lib. I. cap. xxii. 

3 Beaumanoir, chap. vi. ^ 16. 

4 Ibid. chap, xxxix. ^<^ 30,31,66. — Assises de Jerusalem cap. 169. — A 
somewhat similar pi-inciple is in force in the modern jurisprudence of 
China. Women, persons over eighty or under ten years of age, and crip- 



CHALLENGING WITNES SES. II3 

century special privileges were granted by the kings of 
France empowering serfs to bear testimony in court, the dis- 
ability which prevented a serf from fighting with a freeman 
was declared annulled in such cases, as the evidence was 
only admissible when the witness was capable of supporting 
it by arms.^ 

The result of this system was that, in causes subject to 
such appeals, no witness could be forced to testify, by the 
French law of the thirteenth century, unless his principal 
entered into bonds to see him harmless in case of challenge, 
to provide a champion, and to make good all damages in 
case of defeat;^ though it is difficult to understand how tiiis 
could be satisfactorily arranged, since the penalties inflicted 
on a vanquished witness were severe, being, in civil causes, 
the loss of a hand and a fine at the pleasure of the suzerain, 
while in criminal actions ''il perderoit le cors avecques."^ 
The only limit to this abuse was that witnesses were not 
liable to challenge in cases concerning matters of less value 
than five sous and one denier.* 

If the position of a witness was thus rendered unenviable, 
that of the judge was little better. As though the duel had 
not received sufficient extension by the facilities for its em- 
ployment just described, another mode of appealing to the 
sword in all cases was invented by which it became compe- 

ples who have lost an eye or a limb are entitled to buy themselves off from 
punishment, except in a few cases of aggravated crime. They are, there- 
fore, not allowed to appear as accusers, because they are enabled by this 
privilege to escape the penalties of false witness. — Staunton, Penal Code 
of China, Sects, 20-22, and 339. 

' The earliest of these charters is a grant from Louis le-Gros in 1 109 to 
the serfs of the church of Paris, confirmed by Pope Pascal II. in 11 13. 
(Baluz. et Mansi III. 12, 62.) D'Achery (Spicileg. III. 481) gives 
another from the same monarch in 1 128 to the church of Chartres. 

2 Beaumanoir, chap. Ixi. ^ 59. 

3 Ibid. chap. Ixi, ^57. 4 ibid. chap. xl. § 21. 

10* 



114 THE WAGER OF BATTLE. 

tent for the defeated party in any suit to challenge the court 
itself, and thus obtain a forcible reversal of judgment. It 
must be borne in mind that this was not quite as absurd a 
practice as it may seem to us in modern times, for under the 
feudal system the dispensing of justice was one of the most 
highly prized attributes of sovereignty; and, except in 
England, where the royal judges were frequently ecclesias- 
tics, the seignorial courts were presided over by warriors. 
In Germany, indeed, where the magistrates of the lower 
tribunals were elective, they were required to be active and 
vigorous of body. ^ Towards the end of the twelfth century 
in England, we find Glanville acknowledging his uncertainty 
as to whether the court could depute the settlement of such 
an appeal to a champion, or whether the judge delivering 
the verdict was bound to defend it personally; and also as 
to what, in case of defeat, was the legal position of the court 
thus convicted of injustice.^ These doubts would seem to 
indicate that the custom was still of recent introduction in 
England, and not as yet practised to an extent sufficient to 
afford a settled basis of precedents for its details. Elsewhere, 
however, it was firmly established. In 1195, the customs of 
St. Quentin allow to the disappointed pleader unlimited re- 
course against his judge. ^ Towards the latter half of the 
thirteenth century, we find in the ''Conseil" of Pierre de 
Fontaines the custom in its fullest vigor and just on the eve 
of its decline. No restrictions appear to be imposed as to 

' Jur. Provin. Alaman. cap. Ixviii. ^ 6. 

2 " Curia . . . tepetur tamen judicium suum tueri per duellum . . . 
Sed utrum curia ipsa teneatur per aliquem de curia se defendere, vel per 
alium extraneum hoc fieri possit, quero." — (De Leg. Angliae Lib. viii. 
cap. ix.) The result of a reversal of judgment must probably have been 
a heavy fine and deprivation of the judicial function, such being the 
penalty provided for injustice in the laws of Henry I. — '*Qui mjuste judi- 
cabit, cxx sol. reus sit et dignitatem judicandi perdat." — (L. Henrici I. 
Tit, xiii. ^ 4) — which accords nearly with the French practice in the time 
of Beaumanoir. 

? Cited by Marnier in his edition of Pierre de Fontaines. 



CHALLENGING JUDGES. II5 

the cases in \Yhich appeal by battle was permitted, except 
that it was not allowed to override the customary law.^ The 
suitor selected any one of three judges agreeing in the ver- 
dict; he could appeal at any stage of the proceedings when 
a point was decided against him; if unsuccessful, he was 
only liable in a pecuniary penalty to the judges for the 
wrong done them, and the judge, if vanquished, was exposed 
to no bodily punishment.^ The villein, however, was not 
entitled to the privilege, except by special charter.^ While 
the feudal system was supreme, this appeal to arms was the 
only mode of reversing a judgment, and an appeal in any 
other form was an innovation introduced by the extension of 
the royal jurisdiction under St. Louis, who labored so stren- 
uously and so effectually to modify the barbarism of feudal 
institutions by subordinating them to the principles of the 
Roman jurisprudence. De Fontaines, indeed, states that he 
himself conducted the first case ever known in Vermandois 
of an appeal without battle.* At the same time, the progress 
of more rational ideas is manifested by his admission that 

' Car poi profiteroient les costumes el pni's, s'il s'en covenoit combatre; 
ne depecier ne les puet-om par bataille. — Edition Marnier, chap. xxii. 
Tit. xxxii. 

2 Chap. xxn. Tit, i. vi. viii. x. xxvii xxxi. — <' Et certes en fausement 
ne gist ne vie ne menbre de eels qui sont fause, en quelconques point que 
li fausemenz soit faiz, et quele que la querele soit" (Ibid. Tit. xiv.). If 
the judge was accused of bribery, however, and v/as defeated, he was lia- 
ble to confiscation and banishment (Tit. xxvi.). The increasing severity 
meted out to careless, ignorant, or corrupt judges manifests the powerful 
influence of the Roman law, which, aided by the active efforts of legists, 
was infiltrating the customary jurisprudence and altering its character 
everywhere. Thus de Fontaines quotes with approbation the Code, De 
poena judicis (Lib. VH. Tit. xlix. 1. i) as a thing more to be desired than 
expected, while in Beaumanoir we already find its provisions rather ex- 
ceeded than otherwise. 

3 De Fontaines, chap, xxii. Tit. iii. 

* Ibid. chap. xxiL Tit. xxiii. — Et ce fu li premiers dont je oisse onques 
parler qui fust rapelez en Vermendois sanz bataille. 



Il6 THE WAGER OF BATTLE. 

the combat was not necessary to reverse a judgment mani- 
festly repugnant to the law, and that, on the other hand, the 
law was not to be set aside by the duel. 

Twenty years later, we find in Beauraanoir abundant evi- 
dence of the success of St. Louis in setting bounds to the 
abuses which he was endeavoring to remove. The restric- 
tions which he enumerates are greatly more efficacious than 
those alluded to by de Fontaines. In capital cases, the 
appeal did not lie; while in civil actions, the suzerain before 
whom the appeal was made could refuse it when the justice 
of the verdict was self-evident. Some caution, moreover, 
was requisite in conducting such cases, for the disappointed 
pleader who did not manage matters rightly might find him- 
self pledged to a combat, single handed, with all his judges 
at once ; and as the bench consisted of a collection of the 
neighboring gentry, the result might be the confirmation of 
the sentence in a manner more emphatic than agreeable. An 
important change is likewise observable in the severe penalty 
imposed upon a judge vanquished in such an appeal, being a 
heavy fine and deprivation of his functions in civil cases, 
while in criminal ones it was death and confiscation — ''il 
pert le cors et quanques il a."^ 

The king's court, however, was an exception to the gene- 
ral rule. No appeals could be taken from its judgments, for 
there was no tribunal before which they could be carried.^ 
The judges of the royal court were therefore safe from the 
necessity of vindicating their decisions in the field, and they 

' Coutumes du Beauvoisis, chap. Ixi. ^§ 36, 45, 47, 50, 62. — It should 
be borne in mind, however, that Beaumanoir was a royal bailli, and the 
difference between the "assise de bailli" and the "assises des chevaliers" 
is well pointed out by Beugnot (Les Olim, T. II. pp. xxx, xxxi.). Beau- 
manoir in many cases evidently describes the law as he would wish it 
to be. 

2 Et pour ce ne Pen puet fausser, car Ten ne trouveroit mie qui droit en 
feist car li rois ne tient de nului fors de Dieu et de luy. — Etablissements, 
Liv. I. chap. Ixxviii. 



CHALLENGING JUDGES. II7 

even carried this immunity with them and communicated it 
to those with whom they might be acting. De Fontaines 
accordingly advises the seigneur justicier who anticipates the 
appeal of battle in his court to obtain a royal judge to sit 
with him, and mentions an instance in which Philip (pro- 
bably Philip Augustus) sent his whole council to sit in the 
court of the Abbey of Corbie, when an appeal was to be 
entered.^ 

By the German law of the same period, the privilege of 
reversing a sentence by the sword existed, but accompanied 
with regulations which seem evidently designed to embar- 
rass, by enormous trouble and expense, the gratification of 
the impulse which disappointed suitors would have to estab- 
lish their claims in such manner. Thus, by the Suabian 
law, it could only be done in the presence of the sovereign 
himself, and not in that of the immediate feudal superior ^^ 
while the Saxon code requires the extraordinary expedient 
of a pit( hed battle, with seven on each side in the kmg's 
presence/'' It is not a little singular that the feudal law of 
the same period has no allusion to the custom, all appeals 
being regularly carried to and heard in the court of the 
suzerain.* 

1 Conseil, ch. xxii. tit. xxi. 

2 Si contingat ut de justitia sententise pugnandum sit, ilia pugna debet 
institui coram rege — (Jur. Provin. Alaman. cap. xcix. ^ 5 — Ed. Schilt.). 
In a French version of this code, made probably towards the close of the 
fourteenth century, the purport of this passage is entirely changed. " De 
chascun iugemant ne puet Ian trover leaul ne certain consoil si bien come 
per lo consoil de sages de la cort loroi." — Miroir de Souabe, P. I. c. cxiii. 
(Ed. Matile, Neufchatel, 1843). ^^'^ ^^V hence conclude that by this 
period the custom of armed appeal was disused, and the extension of the 
royal jurisdiction was established. 

3 Jur. Provin. Saxon. I. 18; II. 12. — This has been questioned by 
modern critics, but there seems to be no good reason for doubting its au- 
thority. The whole formula for the proceeding is given in the Richstich 
Landrecht (cap. 41), a manual of procedure of the fourteenth century, 
adapted to the Saxon code. 

* Richstich Lehnrecht, cap. xxvii. 



Il8 THE WAGER OF BATTLE. 

CONFIDENCE REPOSED IN THE JUDICIAL DUEL. 

Thus carefully moulded in conformity with the popular 
prejudices or convictions of every age and country, it may 
readily be imagined how large a part the judicial combat 
played in the affairs of daily life. It was so skilfully inter- 
woven throughout the whole system of jurisprudence that no 
one could feel secure that he might not, at any moment, as 
plaintiff, defendant, or witness, be called upon to protect his 
estate or his life either by his own right hand or by the club 
of some professional and probably treacherous bravo. This 
organized violence assumed for itself the sanction of a relig- 
ion of love and peace, and human intelligence seemed too 
much blunted to recognize the shocking contradiction. 

There was, in fact, no question which might not be sub- 
mitted to the arbitrament of the sword or club. If Charle- 
magne, in dividing his vast empire, forbade the employment 
of the wager of battle in settling the territorial questions 
which might arise between his heirs, ^ the prohibition merely 
shows that it was habitually used in affairs of the highest 
moment, and the constant reference to it in his laws proves 
that it was in no way repugnant to his general sense of jus- 
tice and propriety. 

The next century affords ample evidence of the growing 
favor in which the judicial combat was held. About the 
year 930, Hugh, King of Provence and Italy, becoming 
jealous of his uterine brother, Lambert, Duke of Tuscany, 
asserted him to be a supposititious child, and ordered him 
in future to claim no relationship between them. Lambert, 
being " vir . . . bellicosus et ad quodlibet facinus audax," 
contemptuously denied the aspersion on his birth, and offered 
to clear all doubts on the subject by the wager of battle. 
Hugh accordingly selected a warrior named Teudiniis as his 
champion ; Lambert was victor in the ensuing combat, and 

' Carol. Mag. Chart. Divisionis ann. 806 cap. xiv. 



CONFIDENCE REPOSED IN IT. II9 

was universally received as the undoubted son of his mother. 
His triumph, however, was illegally brought to a sudden 
close, for Hugh soon after succeeded in making him pris- 
oner and deprived him of eyesight.* Still, the practice con- 
tinued to be denounced by some enlightened ecclesiastics, 
represented by Atto, Bishop of Vercelli, who declared it to 
be totally inapplicable to churchmen and not to be approved 
for laymen on account of the uncertainty of its results;^ but 
representations of this kind were useless. About the middle 
of the century, Otho the Great appears, throwing the enor- 
mous weight of his influence in its favor. As a magnani- 
mous and warlike prince, the wager of battle appears to have 
possessed peculiar attraction for his chivalrous instincts, and 
he extended its application as far as lay in his power. Not 
only did he force his daughter Liutgarda, in defending her- 
self from a villanous accusation, to forego the safer modes of 
purgation, and to submit herself to the perilous decision of a 
combat,^ but he also caused the abstract question of repre- 
sentation in the succession of estates to be settled in the same 
manner; and to this day in Germany the division of a patri- 
mony among children and grandchildren is regulated in 
accordance with the law enacted by the doughty arms of the 
champions who fought together nine hundred years ago at 
Steil.* There was no question, indeed, which according to 
Otho could not be satisfactorily settled in this manner. Thus 
when, in 963, he was indulging in the bitter recriminations 
with Pope John XH. which preceded the subjugation of the 

1 Liutprandi Antapodos. Lib, iii. cap. 46. 

2 De Pressuris Eccles. Pt. ii. This was written about 945. 

3 Dilhmari Chron. Lib, li, ann, 950, 

4 Widukind, Rer. Saxon, Lib. ii. cap, x. — The honest chronicler con- 
siders that it would have been disgraceful to the nobility to treat questions 
relating to them in a plebeian manner. " Rex autem meliori consilio usus, 
noluit viros nobiles ac senes populi inhoneste tractari, sed magis rem inter 
gladiatores discerni jussit," In both these cases Otho may be said to have 
had ancient custom in his favor. See L, Longobard, Lib. I, Tit. xii, § 
2, — L, Alamann, cap. LVI., Lxxxiv. ; Addit, cap xxii. 



I20 THE WAGER OF BATTLE. 

papacy under the Saxon emperors, he had occasion to send 
Bishop Liutprand to Rome to repel certain accusations 
brought against him, and he ordered the armed followers of 
his ambassador to sustain his assertions by the duel ; a pro- 
position promptly declined by the pontiff, skilled though he 
was in the use of weapons.^ A duellist, in fact, seems to 
have been reckoned a necessary adjunct to diplomacy, for 
when, in 968, the same Liutprand was dispatched by Otho to 
Constantinople on a matrimonial mission, and during the 
negotiations for the hand of Theophania a discussion arose 
as to the circumstances which had led to Otho's conquest of 
Italy, the warlike prelate offered to prove his veracity by 
the sword of one of his attendants: a proposition which put 
a triumphant end to the argument.^ A more formal assertion 
of the diplomatic value of the duel was made when in 11 77 
the conflicting claims of the kings of Castile and Navarre 
were referred to Henry II. of England for adjudication, and 
both embassies to the English court were supplied with 
champions as well as with lawyers, so as to be prepared in 
case the matter was submitted to the duel for decision.^ 

Nor were these solitary instances of the reference of the 
mightiest state questions to the chances of the single com- 
bat. Allusion has already been made to the challenge which 
passed between Charles of Anjou and Pedro of Aragon, and 
not dissimilar was that which resulted from the interview at 
Ipsch in 1053 between the Emperor Henry III. of Germany 
and Henry I. of France.* A hundred years earlier, in 948, 
when, at the Synod of Ingelheim, Louis d'Outremer invoked 
the aid of the church in his death-struggle with the rising 
race of Capet, he closed the recital of the wrongs endured 
at the hands of Hugh-le-Grand by offering to prove the jus- 
tice of his complaints in single combat with the aggres- 

' Liutprandi Hist. Otton. cap. vii. 
2 Liutprandi Legat. cap. vi. 



Benedict. Abbat. Gesla Henrici II. p. 139 (M. R. Series). 
Lambert. Hersfeld. ann. 1056. 



THE DUEL IN QUESTIONS OF STATE. 121 

sor.^ When the battle ordeal was thus thoroughly incor- 
porated in the manners of the age, we need scarcely be 
surprised that, in a life of St. Matilda, written by command 
of her son Otho the Great, the author, after describing the 
desperate struggles of the Saxons against Charlemagne, 
should gravely inform us that the war was at last concluded 
by a duel between the Christian hero and his great antago- 
nist Witikind, religion and empire being both staked on the 
issue as the prize of the victor; nor does the pious chronicler 
shudder at the thought that the destiny of Christianity was 
intrusted to the sword of the Frank. ^ His story could not 
seem improbable to those who witnessed in 1034 the efforts 
of Conrad the Salic to pacify the Saxon marches. On his 
inquiring into the causes of the mutual devastations of the 
neighboring races, the Saxons, who were really the aggres- 
sors, offered to prove by the duel that the Pagan Luitzes 
were in fault, trusting that their Christianity would over- 
balance the injustice of their cause. The defeat of their 
champion by his heathen adversary was, however, a memo- 
rable example of the impartial justice of God, and was 
received as a strong confirmation of the value of the battle 
trial. 3 

The second Otho was fully imbued with his father's views, 
and so completely did he carry them out, that in a gloss on 
the Lombard law he is actually credited with the introduc- 
tion of the duel.* In the preceding essay, allusion has been 
made to his substitution of the judicial combat for the sacra- 
mental oath in 983, and about the same period, he made an 
exception, in favor of the battle ordeal, to the immemorial 
policy of the barbarians which permitted to all subject races 
the enjoyment of their ancestral usages. At the council of 

1 Conquest. Ludov. in Synod. Ingilheim. ann. 948. 

2 s. Mathild. Regin. Vit. c. i. 

3 Wipponis vit. Chunradi Salici. 

■* " Nos belli dono ditat rex maximus Otto." 



122 THE WAGER OF BATTLE. 

Verona, where all the nobles of Italy, secular and ecclesi- 
astical, were assembled, he caused the adoption of a law 
which forced the Italians in this respect to follow the cus- 
toms of their conquerors.^ Even the church was deprived 
of any exemption which she might previously have enjoyed, 
and was only allowed the privilege of appearing by her 
"advocati" or champions.^ There were small chances of 
escape from the stringency of these regulations, for an edict 
of Otho I. in 971 had decreed the punishment of confisca- 
tion against any one who should refuse to undergo the 
chances of the combat.^ 

Under such auspices, and stimulated by the rising spirit 
of chivalry, it is no wonder that the judicial duel acquired 
fresh importance, and was more extensively practised than 
ever. From the wording of a constitution of the Emperor 
Henry II., it may even be assumed that in the early part of 
the eleventh century it was no longer necessary that there 
should be a doubt as to the guilt of the accused to entitle 
him to the privileges of the combat, and that even the most 
notorious criminal could have a chance of escape by an 
appeal to the sword.* 

Thus it came to pass that nearly every question that could 
possibly arise was finally deemed liable to the decision of 
the wager of battle. If Otho the Great employed cham- 
pions to legislate respecting a disputed point of law, he was 
not more eccentric than the Spaniards, who settled in the 
same manner a controversy regarding the canonical observ- 
ances of religion, when the fiery and indomitable Hilde- 
brand endeavored to force the introduction of the Roman 
liturgy into Castile and Leon, in lieu of the national Gothic 

J L. Longobard. Lib, ii. Tit. Iv. ^ 38. 

2 Ibid. I 34. 

3 Si non audeat, res suae infiscentur. — Convent. Papiens. ann. 971. 

* Qui vero infra treugam, post datum osculum pacis, alium hominem 
interfecerit, et negare voluerit, pugnam pro se faciat. — I.. Longobard. 
Lib. I. Tit. ix. I 38. 



ITS UNIVERSAL APPLICATION. 123 

or Mozarabic rite. With considerable difficulty, some years 
before, Navarre and Aragon had been led to consent to the 
change, but the Castilians were doggedly attached to the 
observances of their ancestors, and stoutly refused compli- 
ance. In 1077, Alfonso I. procured the assent of a national 
council, but the people rebelled, and after repeated negotia- 
tions the matter was finally referred to the umpirage of the 
sword. The champion of the Gothic ritual was victorious, 
and tradition adds that a second trial was made by the ordeal 
of fire ; a missal of each kind was thrown into the flames, 
and the national liturgy emerged triumphantly unscathed.^ 

Nearly contemporary with this was the celebrated case of 
Otho, Duke of Bavaria, perhaps the most noteworthy exam- 
ple of a judicial appeal to the sword. A worthless adven- 
turer, named Egeno, accused the proud and powerful Otho 
of conspiring against the life of Henry IV. In a diet held 
at Mainz, the duke was commanded to disprove the charge 
by doing battle with his accuser within six weeks. Accord- 
ing to some authorities, his pride revolted at meeting an 
adversary so far his inferior; according to others, he was 
prevented from appearing in the lists only by the refusal of 
the Emperor to grant him a safe conduct. Be this as it 
may, the appointed term elapsed, his default of appearance 
caused judgment to be taken against him, and his duchy was 
accordingly confiscated. It was bestowed on Welf, son of 
Azo d'Este and of Cunigunda, descendant and heiress of the 
ancient Guelfic Agilolfings; and thus, on the basis of a ju- 
dicial duel, was founded the second Bavarian house of Guelf, 
from which have sprung so many royal and noble lines, 
including their Guelfic Majesties of Britain. Some years 
later, the Emperor himself offered to disprove by the same 
means a similar accusation brought against him by a certain 
Reginger, of endeavoring to assassinate his rival, Rodolph 
of Suabia. Ulric of Cosheim, however, who was involved 

^ Ferreras, Hist. Gen. d'Espagne, Trad. d'Hermilly, III. 245. 



124 THE WAGER OF BATTLE. 

in the accusation, insisted on taking his place; and a day- 
was appointed for the combat, which was prevented only by 
the opportune death of Reginger.^ 

Scarcely less impressive in its results, and even more 
remarkable in itself, as exhibiting the duel invested with 
legislative as well as judicial functions, is the case wherein 
the wager of battle was employed in ti8o to break the over- 
grown power of Henry the Lion. That puissant Duke of 
Saxony and Bavaria had long divided the power of the em- 
pire, and defied the repeated efforts of Frederic Barbarossa 
to punish his constantly recurring rebellions. Cited to 
appear and answer for his treasons in successive diets, he 
constantly refused, on the plea that the law required him to 
have a trial within his own dominions. At length, in the 
diet of Wurzburg, a noble arose and declared himself ready 
to prove by the single combat that the Emperor could legally 
cite his princes before him at any place that he might select 
within the limits of the empire. Of course there was none 
to take up the challenge, and Frederic was enabled to erect 
the principle thus asserted into a binding law. Henry was 
condemned by default, and his confiscated possessions were 
shared between those who had arranged and enacted the 
comedy.^ 

No rank of life in fact procured exemption from the duel 
between antagonists of equal station. When in 1002, on the 
death of Otho HI., the German throne was filled by the 
election of Henry the Lame, Duke of Bavaria, one of his 
disappointed competitors, Hermann, Duke of Suabia, is said 
to have demanded that their respective claims should be 
determined by a judicial combat, and the new king, feeling 
himself bound to accept the wager of battle, proceeded to 
the appointed place, and waited in vain for the appearance 
of his antagonist.^ Thus the champion of England, who 

' Lambert. Hersfeld. ann. 1070, 1073, 1074. — Conrad. Ursperg. aim. 
107 1. — Bruno de Belle Saxonico. 

2 Conrad. Ursperg. ann. 1175. ' Dithmari Chron. Lib. v. 



ITS UNIVERSAL APPLICATION. I25 

figures in the coronation pageant of Westminster Abbey, is a 
relic of the times when it was not an idle ceremony for the 
armed and mounted knight to fling the gauntlet and proclaim 
aloud that he was ready to do battle with any one who chal- 
lenged the right of the new monarch to his crown. ^ A 
striking example of the liability attaching to even the most 
exalted rank is afforded by a declaration of the privileges 
of the Duchy of Austria, granted by Frederic Barbarossa in 
1 156, and confirmed by Frederic II. in 1245. These privi- 
leges rendered the dukes virtually independent sovereigns, 
and among them is enumerated the right of employing a 
champion to represent the reigning duke when summoned to 
the judicial duel.^ Even more instructive is the inference 
deducible from the For de Morlaas, granted to his subjects 
by Gaston IV. of Beam about the year iioo. The privi- 
leges contained in it are guaranteed by a clause providing 
that, should they be infringed by the prince, the injured 
subject shall substantiate his complaint by his simple oath, 
and shall not be compelled to prove the illegality of the 
sovereign's acts by the judicial combat,'' thus indicating a 
pre-existing custom of the duel between the prince and his 
vassals. 

To such an extent was carried the respect entertained for 
the judicial duel, that, by the English law of the thirteenth 
century, a pleader was sometimes allowed to alter the record 
of his preliminary plea, by producing a man who would 
offer to prove with his body that the record was incorrect, 
the sole excuse for the absurdity being that it was only 
allowed in matters which could not injure the other side ;* 
and a malefactor turning king's evidence was obliged, before 

' From the time of Henry I., the office of king's champion was one of 
honor and dignity. See Spelman's Glossary, 

2 Constit. Frid. II. ann. 1245 cap, 9, (Goldast. Const, Imp. I, 303.) 

3 For de Morlaas, Ruhr. xxvi. 

4 Bracton, Lib. iii. Tract, ii. cap. 37 ^ 5. 



126 THE WAGER OF BATTLE. 

receiving his pardon, to pledge himself to convict all his 
accomplices, if required, by the duel.^ 

A case which occurred about the year iioo shows the 
robustness of the faith with which the duel was regarded. A 
sacrilegious thief named Anselm stole the sacred vessels 
from the church of Laon and sold them to a merchant, from 
whom he exacted an oath of secrecy. Frightened at the 
excommunications fulminated by the authorities of the plun- 
dered church, the unhappy trader revealed the name of the 
robber. Anselm denied the accusation, offered the wager of 
battle, defeated the unfortunate receiver of stolen goods, and 
was proclaimed innocent. Encouraged by impunity, he 
repeated the offence, and after his conviction by the ordeal 
of cold water, he confessed the previous crime. The doubts 
cast by this event on the efficacy of the judicial combat were, 
however, happily removed by the suggestion that the mer- 
chant had suffered for the violation of the oath which he had 
sworn to Anselm, and the reputation of the duel remained 
intact.^ 

It may readily be imagined that cases of this nature fre- 
quently arose, and as they often did not admit of so inge- 
nious an explanation of the criminal's escape, legal casuists 
assumed a condition of being, guilty in the sight of God, but 
not in that of man — a refinement of speculation which even 
finds place in the German codes of the thirteenth century;^ 

1 Bracton, Lib, ill. Tract, ii. cap. 33 ^ 2 ; 34 ^ 2. 

2 Guibert. Noviogent. de Vita sua Lib. in. cap. xvi. — Hermann, de 
Mirac. S. Mariae Laudun. Lib, iii. cap. 28 — Forsitan, ut multi putarunt, 
pro fidei violalse reatu, qua promiserat fidem Anselmo, quod cum non 
detegeret 

3 Und diser vor Got schuldig, und vor den luten nit. — (Jur, Provin. 
Alamann, cap, ccxix. | 8,) This is a provision for cases in which a thief 
accuses a receiver of having suggested and assisted in the crime. The 
parties are made to fight, when, if the receiver is worsted, both are hanged; 
if the thief, he alone, and the receiver escapes though criminal. The French 
version enlarges somewhat on the principle involved : " Se il puet vancre 



CONFIDENCE REPOSED IN IT. I27 

and men contented themselves then, as they do still, with 
predicting future misfortunes and an eternity of punishment. 
The more direct solution, in cases of unjust condemnation, 
was very much like that which justified the defeat of Anselm's 
merchant — that the unfortunate victim, though innocent of 
the special offence charged, suffered in consequence of other 
sins. This doctrine was even supported by the infallible 
authority of the papacy, as enunciated in 1212 by Innocent 
III. in a case wherein the priory of St. Sergius was unjustly 
convicted of theft by the judicial duel, and its possessions 
were consequently seized by the authorities of Spoleto.^ 

That the combatants themselves did not always feel im- 
plicit confidence in the event, or rely solely upon the right- 
eousness of their cause, is shown by the custom of occa- 
sionally bribing Heaven either to assist the right or to defend 
the wrong. Thus, in the eleventh century, we find the mo- 
nastery of St. Peter at Beze in the enjoyment of certain lands 
bestowed on the Saint by Sir Miles the Stammerer, who in 
this way endeavored to purchase his assistance in a combat 
about to take place — a bargain no doubt highly appreciated 
by the worthy monks. ^ According to the belief of the pious. 
Heaven might be propitiated by less venal means, for Cse- 
sarius of Heisterbach relates on the authority of an eye-wit- 
ness that when Henry VI. entered Lombardy in 1196, a 
castellan was accused before him of oppression and rapine 
by his neighbors, who produced a champion of enormous 
size to vindicate their case. The Emperor decreed the bat- 
tle, when the brother of the accused offered himself for the 

lautre il est quites et li autre sera panduz. et sera an colpe anver lo munde 
et anver dex andui. ce avient a assez de genz, que aucons sunt an colpe 
anver dex et ne mie anver le seigle."— (Miroir de Souabe, P. 11, c. vi.) 

1 Can. Significantibus, Extra, De Purgatione Vulgari. — " Duellum in 
quo aliis peccatis suis prsepedientibus, ceciderunt." 

2 Isdem quoque Milo . . . monomachi certaturus pugna, attribuit sancto 
Petro terram quam habebat in Luco, prope atrium ecclesiae, quo sibi adjutor 
in dispositobello existerlt. — Chron. Besuense, Chart, de Luco. 



128 THE WAGER OF BATTLE. 

defence — a slender and most unequal antagonist. He pre- 
pared himself for the strife, however, by assiduous confes- 
sion and prayer, and easily overcame his gigantic adversary j 
and thus, exclaims the worthy chronicler, a guilty man 
escaped the death he had deserved, solely by virtue of the 
humble confession of his brother.^ Csesarius also mentions 
another case, in a duel decreed by Frederic Barbarossa 
between a knight and a gigantic champion, where the ine- 
quality was more than counterbalanced by the fact that the 
knight piously took the precaution of receiving the sacrament 
before entering the lists, and thus was enabled to overcome 
his adversary.^ 

LIMITATIONS ON THE WAGER OF BATTLE. 

The right of demanding the wager of battle between prin- 
cipals varied much with the age and race. When Beauma- 
noir composed his ''Coutumes du Beauvoisis," in 1283, 
the practice may be considered to have entered upon its 
decadence ; twenty years had elapsed since the determined 
efforts of St. Louis to abolish it; substitutes for it in legal 
processes had been provided ; and the manner in which that 
enlightened jurist manifests his preference for peaceful forms 
of law shows that he fully appreciated the civilizing spirit in 
which the monarch had endeavored to soften the ferocity of 
his subjects. When, therefore, we see in Beaumanoir's 
treatise how few restrictions existed in his time, we may 
comprehend the previous universality of the custom. In 
criminal cases, if an accuser offered battle, the defendant 
was forced either to accept it or to confess his guilt, unless 
he could prove an alibi, or unless the accuser was himself 
notoriously guilty of the crime in question, and the accusa- 
tion was evidently a mere device to shift the guilt to the 

• Caesar. Heisterbach. Dial. Mirac. Dist. in. c. xviii. 
2 Ibid. Dist. IX. c. xlviii. 



LIMITATIONS GERMANY. 12Q 

shoulders of another; or unless, in case of murder, the vic- 
tim had disculpated him, when dying, and had named the 
real criminals.^ If, on the other hand, the accused demanded 
to wage his battle, the judge could only refuse it when his 
guilt was too notorious for question.^ A serf could not chal- 
lenge a freeman, nor a bastard a man of legitimate birth 
(though an appeal of battle might lie between two bastards), 
nor a leper a sound man.^ In civil actions, the battle trial 
was not allowed in cases relating to dower, to orphans under 
age,* to guardianships, or to the equity of redemption afforded 
by the feudal laws to kinsmen in the sale of heritable pro- 
perty, or where the matter at stake was of less value tha'i 
twelve deniers.^ St. Louis also prohibited the duel between 
brothers in civil cases, while permitting it in criminal accu- 
sations.^ Tlie slenderness of these restrictions shows whit 
ample opportunities were afforded to belligerent pleaders. 

In Germany, as a general rule, either party had a right to 
demand the judicial combat,^ subject, however, in practice, 
to several important limitations. Thus, difference of rank 
between the parties afforded the superior a right to decline a 
challenge, as we shall see more fully hereafter.^ Relation- 
ship between the contestants was also an impediment, of 
which either might avail himself,^ and even the fact that the 

1 Coutumes du Beauvoisis, chap. Ixi. § 2; chap, xliii. ^ 6, 

2 Ibid. chap. Ixi. | 2; chap, xxxix. § 12. 

3 Ibid. chap. Ixiii. g§ I, 2, lo. 

* Twenty-one years is the age mentioned by St. Lou's as that at which a 
man was hable to be called upon to fight. — Etablissements, Liv. I. chap. 
Ixxiii., cxlii. 

5 Coutumes du Beauvoisis, chap. Ixiii. ^^ ii, 13, 18. The denier was 
the twelfth part of the solidus or sou. 

s Etablissements, Liv l. chap, clxvii. 

7 Jur. Provin. Alaman. cap. clxvi. ^§ 13, 27; cap. clxxvii. (Ed, Schi't.) 
• — Jur. Prov. Saxon. Lib. I. clxviii. 

8 This rule was strictly laid down as early as the time of Frederic Bar- 
barossa. — Feudor. Lib. 11. Tit. xxvii. ^ 3. 

9 Jur. Provin. Alaman. cap. ccclxxxvi. ^ 2. (Ed. Schilteri.) — Jur. Pro- 
vin. Saxon. Lib. i. c. Ixiii. — Sachsische Weichbild xxxv. 6. 



130 THE WAGER OF BATTLE. 

defendant was not a native of the territory in which the action 
was brought gave him the privilege of refusing the appeal.^ 
Still, we find the principle laid down even in the fourteenth 
century that cases of homicide could not be determined in 
any other manner. "•^ There were circumstances, indeed, in 
which the complainant, if he could bring the evidence of 
seven witnesses in his favor, could decline the duel ; but if 
he chose to prove the charge by the combat, no examination 
or testimony was admitted. In the same way, if a man was 
slain while committing theft or robbery, and was prosecuted 
for the crime, the accuser was not bound to offer the duel if 
he could produce the evidence of seven witnesses; but if a 
relative of the dead man offered to vindicate him by combat, 
this annulled all the evidence, and conviction could not be 
had without the battle ordeal.^ Yet a general rule is found 
expressed to the effect that it was necessary only in cases 
where no other evidence was obtainable, when the result 
could be safely left to the judgment of Omniscience.* 

In the Latin kingdoms of the East, and among the Arme- 
nians, who, curiously enough, adopted the customs of their 
fellow Christians from the West, it would seem that in both 
the noble and the roturier courts, in civil as well as in crim- 
inal cases, the plaintiff or prosecutor was not obliged per- 
sonally to fight, but that if one of his witnesses offered battle, 
the defendant or accused was not permitted to decline the 
challenge under pain of losing his suit or being condemned. 

• Jur. Provin. Alaman. cap. ccxcii, ^ 2. — Jur. Provin. Saxon. Lib. ill. 
c. xxvi. xxxiii. 

2 Sed scias si de perpetrato homicidio agitur, probationem sine duello 
non procedere. — Richslich Landrecht, cap. xlix. 

3 Jur. Provin. Alaman. cap. ccclxxxvi. §^ 28, 29. (Ed. Schilteri.) — Jur. 
Prov. Saxon. Lib. I. art. 64. — Sachsische Weichbild art. Ixxxvii. Ixxxviii. 

* Hinc pervenit dispositio de duello. Quod enim homines non vident 
Deo nihilominus notum est optime, unde in Deo confidere possumus, eum 
duellum secundum jus diremtuium. — Jur. Provin. Alaman. cap. clxviii. ^ 
19. (Ed. Senckenberg.) 



LIMITATIONS ENGLAND. I3I 

On the other hand, unless the complainant or accuser had a 
witness who was willing to offer battle, the oath of denial of 
the other jDarty was sufficient, and in criminal cases the accu- 
ser was subjected to the talio/ 

By the English law of the thirteenth century, a man 
accused of crime had, in doubtful cases only, the right of 
election between trial by jury and the wager of battle. When 
a violent presumption existed against him, he was obliged to 
submit to the verdict of a jury; but in cases of suspected 
poisoning, as satisfactory evidence was deemed unattainable, 
the accused had only the choice between confession and the 
combat.^ On the other hand, when the appellant demanded 
the duel, he was obliged to make out a probable case before 
it was granted.^ When battle had been gaged, however, no 
withdrawal was permitted, and any composiiion between the 
parties to avoid it was punishable by fine and imprisonment* 

1 Assises d'Antioche, ITaute Cour, ch. ix. xi xii; Assises des Bourgeo's, 
ch. vi. vii. (Venise, 1876). This code, of which the existence has long 
been suspected, has recently been discovered in an Armenian version 
made by Sempad, the Constal:)le of Armenia Minor, in 1265, for the use of 
his fellow countrymen. It has been published, with a French translation, 
by the Mehkitarist Society of St. Lazarus, and gives us the customary law 
of the Crusaders in an earlier form than the current texts of the Assises de 
Jerusalem. 

2 Bracton. Lib. iii. Tract, ii. cap. 18. — Fleta Lib, i. cap. xxxi. ^^ 2, 3. 

3 Bracton, Lib. in. Tract, ii. cap. 23 § i. 

4 Si autem uterque defaltam fecerit, et testatum sit quod concordati fue- 
runt, uterque capiatur, et ipsi et plegii sui in misericordia. — Ibid. 

The custom with regard to this varied greatly according to local usage. 
Thus, a charter of the Count of Forez in 1270 concedes the right of avoid- 
ing battle, even at the last moment, by satisfying the adversary, and paying 
a fine of sixty sols. — Chart. Raynaldi Com. Forens. c. 4 (Bernard, Hist, 
du Forez, T. I. Preuves, p. 25). According to the customs of Lorris, in 
1 155, if a composition was effected after battle had been gaged and before 
security was given, each party paid a fine of two sous and a half. If after 
security was pledged, the fine was increased to seven sous and a half. — 
Chart. Ludov. Junior, ann. 1155, cap. xiv. (Isambert, Anciennes Lois 
Frangaises, I. 155.) 



132 THE WAGER OF BATTLE. 

— a regulation, no doubt, intended to prevent pleaders from 
rashly undertaking it, and to obviate its abuse as a means of 
extortion. In accusations of treason, indeed, the royal con- 
sent alone could prevent the matter from being fought out.^ 
Any bodily injury on the part of the plaintiff, tending to 
render him less capable of defence or aggression, likewise 
deprived the defendant of the right to tlie wager of battle, 
and this led to such nice distinctions that the loss of molar 
teeth was adjudged not to amount to disqualification, while 
the absence of incisors was considered sufficient excuse, be- 
cause they were held to be important weapons of offence.'' 
Thus the knight who demanded that his antagonist should 
undergo the destruction of an eye to equalize the loss of his 
own, extinguished in the fight of Otterbourne, was ^strictly 
within the privileges accorded him by law. Notwithstanding 
these various restrictions, cases of treason were almost always 
determined by the judicial duel, according to both Glanville 
and Bracton.^ This was in direct opposition to the custom 
of Lombard y, where such cases were especially exempted 
from decision by the sword.* 

In Beam, the duel was permitted at the option of the 
accuser in cases of murder and treason, but in civil suits only 
in default of testimony.^ That in such cases it was in com- 
mon use is shown by a treaty made, in the latter part of the 
eleventh century, between Centulla I. of Beam and the Vis- 
count of Soule, in which all doubtful questions arising be- 
tween their respective subjects are directed to be settled by 
the combat, with the singular proviso that the combatants 
shall be men who have never taken part in war.^ In the 

' Fleta Lib. Ii. cap. xxi. ^ 2. 

2 Bracton. Lib. ill. Tract, ii. cap. 24 | 4. — Hujusmodi vero dentes mul- 
tum adjuvant ad devincendum. 

3 Glanvil. Lib. xiv. cap. i. — Bracton, Lib. iii. Tract, ii. cap. 3 'I i. 

4 Feudor. Lib. 11. Tit. xxxix, 

5 For de Morlaas, Rubr. xxxviii. xxxix. 

6 Marca, Hist, de B^arn, p. 293. (Mazure et Ilaloulet.) 



MINIMUM LIMIT OF VALUE, 



133 



thirteenth century, however, a provision occurs which must 
have greatly reduced the number of duels, as it im.posed a 
fine of only sixteen sous on the party who made default, 
while, if vanquished, he was visited with a mulct of sixty 
sous and the forfeiture of his arms/ In the neighboring 
region of Bigorre an exemption was allowed in favor of the 
widow whose husband had been slain in war. Until she 
remarried or her sons were of age to bear arms, she was ex- 
empt from all legal process— a provision evidently intended 
to relieve her from the duel in which suits were liable to 
terminate.'^ 

In some regions, greater restrictions were imposed on the 
facility for such appeals to the sword. In Catalonia, for 
instance, the judge alone had the power of deciding whether 
they should be permitted,-'' and a similar right was reserved 
in doubtful cases to the podesta in a code of laws enacted at 
Verona in 1228.* This must often have prevented the injus- 
tice inherent in the system, and an equally prudent reserve 
was exhibited in a statute of Montpellier, which required the 
assent of both parties.^ On the other hand, in Normandy, 
at the commencement of the thirteenth century, many cases 
relating to real estate were examined in the first instance by 
a jury of twelve men, and, if they failed of an unanimous 
verdict, the question was decided by the duel, whether the 
parties were willing or not.^ 

From a very early period, a minimum limit of value was 
established, below which a pugnacious pleader was not al- 
lowed to put the life or limb of his adversary in jeopardy. 
This varied of course with the race and the period.. Thus, 

> For de Morlaas, Ruhr. iv. 

2 De Lagreze, Hist, du Droit dans les Pyrenees, Paris, 1867, p. 68. 

3 Libell. Catalan. MS. (Du Cange.) 

■1 Meo arbitrio determinabo duellum, vel judicium judicabo. Lib. Juris 
Civil. Veronse, cap. 78 (p. 63) , 

5 Statut. Montispess. ann. 1204, (Du Cange.) 
s Etablissements de Norma.ndie, J>assi/n (Edition Marnier). 
12 



134 THE WAGER OF BATTLE, 

among the Angli and Werini, the lowest sum for which the 
combat was permitted was two solidi,^ while the Baioarians 
established the limit at the value of a cow.^ In the tenth 
century, Otho II. decided that six solidi should be the 
smallest sum worth fighting for.^ The laws of Henry I. of 
England decreed that in civil cases the appeal of battle 
should not lie for an amount less than ten solidi.^ In France, 
Louis-le-Jeune, by an edict of 1168, forbade the duel when 
the sum in debate was less than five sous, ^ and this remained 
in force for at least a century.^ The custom of Normandy 
in the thirteenth century specifies ten sous as the line of 
demarcation between the "lex apparens" and the ''lex 
simplex" in civil suits,'' and the same provision retains its 

' L. Anglior. et Werinor. Tit. xv. The variations in the coinage are 
so numerous and uncertain, that to express the values of the solidus or sou, 
at the diffei-ent periods and among the different races enumerated, would 
occupy too much space. In general terms, it may be remarked that the 
Carlovingian solidus was the twentieth part of a pound of silver, and, ac- 
cording to the researches of Guerard, was equivalent in purchasing power 
to about thirty- six francs of modern money. The marc was half a pound 
of silver. 

^ L. Baioar, Tit. vni. cap. ii. ^ 5 ; cap. iii, 

3 L. Longobard. Lib. ii. cap. Iv. | 37. 

4 L. Henrici I. cap. 59. 

5 Isambert, Anciennes Lois Francaises, I. 162. This occurs in an edict 
abolishing sundry vicious customs of the town of Orleans. It was proba- 
bly merely a local regulation, though it has been frequently cited as a 
general law. 

6 Livres de Jostice et de Plet, Liv. xix. Tit. xvii. § 3, Tit. xxii. § 4, Tit. 
xxxviii. ^ 3. See also a coutumier of Anjou of the same period (Anciens 
Usages d' Anjou, § 32. — Marnier, Paris, 1853). 

The " Livre de Jostice et de Plet" was the production of an Orleannais, 
which may account for his affixing the limit prescribed by the edict of 
Louis-le-Jeune. The matter was evidently regulated by local custom, 
since, as we have already seen, his contemporary, Beaumanoir (cap. Ixiii. 
^11), names twelve deniers, or one sou, as the minimum. 

7 Cod. Leg. Norman. P. 11. cap, xxi. ^ 7 (Ludewig, Reliq. MSS. VII. 
307), The judgment of God was frequently styled "Lex apparens" or 
" paribilis," 



QUESTIONS OF RANK. I35 

place ill the Coutumier in use until the sixteenth century/ 
In the Latin States of the East founded by the Crusaders, the 
minimum was a silver marc in cases of both nobles and ro- 
turiers.^ A law of Aragon, in 1247, places the limit at ten 
sous.^ By the criminal procedure in England, at about the 
same period, the duel was prescribed only for cases of felony 
or crimes of importance, and it was forbidden in trifling 
misdemeanors.* The contemporary law of Suabia pro- 
vides that in accusations of personal violence, the duel was 
not to be allowed, unless the injury inflicted on the com- 
plainant had been sufficiently serious to cause permanent 
maiming,^ thus showing how thoroughly different in spirit 
was the judicial combat from the modern code of honor 
which has been affiliated upon it. 

As regards the inferior classes of society, innumerable 
documents attest the right of peasants to decide their quar- 
rels by the ordeal of battle. By the old Lombard law, 
slaves were allowed to defend themselves in this manner;^ 
and they could even employ the duel to claim their liberty 
from their masters, as we may infer from a law of King 
Grimoald denying this privilege to those who could be 
proved to have served the same master for thirty continuous 
years. ^ Similarly, among the Frisians, a litus claiming his 
liberty was allowed to prove it against his master with arms.^ 
The institutions of feudalism widered the distance between 
the different classes of society, and we have already seen 
that, in the thirteenth century, serfs were enfranchised in 

' Anc. Coutum. de Normandie, cap. %"] (Bourdot de Richebourg, IV. 

55)- 

2 Assises de Jerusalem, cap. 149. — Assises dAntioche, Haute Cour, ch. 

ix. ; Assises des Bourgeois, ch. vi. 

^ Laws of Huescar, by Don Jayme I. (Du Cange. s. v. Torna.) 
* Bracton. Lib. ill. Tract, ii. cap. 19 \ 6, cf. cap. 23 \ 2. 

5 Jur, Provin. Alaman, cap. clxxii. \ 20. (Ed, Senckenberg.) 

6 L. Longobard. Lib. I. Tit. xxv. \ 49. 

7 Ibid. Lib, i. Tit. ix. § 38. s l. Frision. Tit. xi. ca:\ iii. 



136 THE WAGER OF BATTLE. 

order to enable them to support .their testimony by the com- 
bat ; yet this was only the result of inequality of rank. In 
the time of Beaumanoir (1283), though an appeal would 
not lie from a serf to a freeman, it may be safely inferred 
from the context that a combat could be legally decreed 
between two serfs, if the consent of their masters were 
obtained,^ and other contemporary authorities show that a 
man claimed as a serf could defend his freedom with the 
sword against his would-be-master. ^ Even Jews were held 
liable to the appeal of battle, as we learn from a decision 
of 1207, preserved in an ancient register of assizes in Nor- 
mandy,^ and they no doubt purchased the exemption, which 
was granted to them, except in cases of flagrant murder, by 
Philippe-le-Long, as a special favor, in 1317.* 

Difference of condition thus became an impediment to the 
duel, and formed the subject of many regulations, varying 
with circumstance and locality. The free mountaineers of 
Beam, as has been seen, placed the prince and the subject 
on an equality before the law, but this was a rare example 
of independence, and the privileges of station were some- 
times exhibited in their most odious form. In France, for 
instance, while the battle trial could take place between the 
gentilhomme and the vilain, the former was secured by the 
distinction that if the villein presumed to challenge him, he 
enjoyed the right of fighting on horseback with knightly 
weapons, while the challenger was on foot and armed only 
with shield and staff; but if the gentleman condescended to 

' Coutumes du Beauvoisis, cap. Ixiii. \ i. — The consent of the master 
was necessary to authorize the risk of loss which he incurred by his serf 
venturing to engage in the duel. Thus, in a curious case which occurred 
in 1293, "idem Droetus corpus suum ad duellum in quo perire posset ob- 
ligare non poterat sine nostri licentia speciali." — Actes du Parlernent de 
Paris, I. 446. 

2 Livres de Jostice et de Plet, Li v. xix. Tit. 13. — Tabul. Vindocinens. 
cap. 159. (Du Cange, s. \. adraniire.) 

3 Assises de I'Echiquier de Normandie, p. 174. (Marnier.) 

4 Lauriere, Table Chron. des Ordonnances, p. 105. 



QUESTIONS OF RANK. 137 

challenge the villein, they met on equal terms. ^ This last 
regulation was however enforced with impartial justice, for 
Beaumanoir mentions a case in which a gentleman chal- 
lenged a roturier, and presented himself in the lists mounted 
and armed with his knightly weapons. The defendant pro- 
tested against this illegal advantage, and the judges decided 
that the gentleman had forfeited his horse and arms, and 
that if he desired to continue the combat he must do so in 
the condition in which he was left by the disarmament — in 
his shirt without armor or weapons, while his adversary 
should retain coat of mail, target, and club.^ The barbarous 
injustice of the general rule, moreover, was by no means of 
universal application. Pierre de Fontaines, for instance, 
directs that in cases of appeal from a roturier to a gentleman 
the combat shall take place on foot between champions f 
and I fmd a case recorded in 1280, in which 2ifemme de corps 
of Aimeri de Rochechouart accused the Sire de Montricher 
of burning her houses, and as the duel was adjudged she 
placed in the lists an armed and mounted knight as her 
champion, to whom no objection seems to have been made.* 
Throughout both Northern and Southern Germany, where 
the minute distinctions of birth were guarded with the most 
jealous care from a very early period, the codes of the thir- 
teenth century, including even the burgher laws, provided that 
a difference of rank permitted the superior to decline the 
challenge of an inferior, while the latter was obliged to ac- 
cept the appeal of the former. So thoroughly was this prin- 
ciple carried into practice, that, to compel the appearance of 
a Semperfri^ or noble of sixteen quarterings, the appellant 
was obliged to prove himself of equally untarnished descent.^ 

' Beaumanoir, op. cit. cap. Ixi, W 9, 10. — Etablissements de S. Louis, 
Liv. I. chap. Ixxxii. 

2 Beaumanoir, Cout. du Beauvoisis, cap. Ixiv, \ 3. 

3 Conseil. ch. xxi. Tit. xiv, 

4 Actes du Parlement de Paris, T. I. No. 2269 A. p. 217. 

5 Jur. Provin. Saxon, Lib. I. c. 50, 62. Lib. iii. c. 29, 65. — Sachsische 

12* 



138 THE WAGER OF BATTLE. 

In the same spirit a Jew could not decline the appeal of 
battle offered by a Christian accuser, though we may safely 
infer that the Jew could not challenge the Christian.^ So, 
in the Latin kingdom of Jerusalem, the Greek, the Syrian, 
and the Saracen could not challenge the Frank, but could 
not, in criminal cases, decline the challenge of a Christian, 
though they might in civil suits. ^ In Aragon, no judicial 
duel was permitted between a Christian and a Jew or a Sara- 
cen,^ while in Castile both combatants had to be gentlemen, 
quarrels between parties of different ranks being settled by 
the courts.* On the other hand, in Wales, extreme differ- 
ence of rank was held to render the duel necessary, as in 
cases of treason against a lord, for there the lord was plain- 
tiff against his vassal, and as no man could enter into law 
with his lord, the combat was considered the only mode of 
prosecution befitting his dignity.^ 

There were three classes — women, ecclesiastics, and those 
suffering under physical incapacity — with whom personal 
appearance in the lists would appear to be impossible. When 
interested in cases involving the judicial duel they were 

Weichbild xxxiii. xxxv. Jur, Provin. Alamann. cap. ccclxxxv. §^ 14, 15. 
(Ed. Schilter.) According to some MSS. of the latter, however, this 
privilege of declining the challenge of an inferior was not allowed in cases 
of homicide. — " Ibi enim corpus corpori opponitur." — cap. liii. ^ 4. (Ed. 
Senckenberg. ) On the other hand, a constitution of Frederic Barbarossa, 
issued in 1 168 and quoted above, forbids the duel in capital cases, unless 
the adversaries are of equal birth. 

' Jur. Prov. Alamann. cap. cclviii. § 20. (Ed. Schilter.) — We have al- 
ready seen that the converse of this rule was introduced in England, as 
regards questions between Frenchmen and Englishmen, by William the 
Conqueror. 

2 Quia surien et greci in omnibus suis causis, praeter quam in criminali- 
bus excusantur a duello. — Assises de Jerusalem, Baisse Court, cap. 269. 

3 Laws of Huescar, ann. 1247. (Du Cange s, v. Torna.) 

4 Las Siete Partidas, P. vii. Tit. iii. 1. 3. 

5 Anomalous Laws, Book xiv. chap. xiv. ^ r. (Owen IL 625.) 



LIABILITY OF WOMEN. I3Q 

therefore allowed the privilege of substituting a champion, 
who took their place and did battle for the justice of their 
cause. So careful were legislators to prevent any failure in 
the procedure prescribed by custom, that the North German 
law provided that the dead when prosecuted could appear 
in the lists by substitutes,^ and the Assises de Jerusalem or- 
dered the suzerain to supply the expenses for forty days, 
when a suitor unable to fight was also too poor to pay for a 
champion to take his place; and when a murdered man left 
no relatives to prosecute the murderer, the suzerain was like- 
wise obliged to furnish the champion in any trial that might 
arise. '-^ Equally directed to the same purpose was the Ger- 
man law which provided that when a crippled defendant 
refused or neglected to procure a substitute, the judge was to 
seize one-half of his property with which to pay the services 
of a gladiator, who could claim nothing more.^ Guardians 
of women and minors, moreover, were bound to furnish 
battle in their behalf.* 

Women, however, did not always restrict themselves to 
fighting thus vicariously. The German laws refer to cases 
in which a woman might demand justice of a man personally 
in the lists, and not only are instances on record in which 
this was done, as in a case at Berne in 1228, in which the 
woman was the victor,^ but it was of sufficiently frequent 
occurrence to have an established mode of procedure, which 
is preserved to us in all its details by illuminated MSS. of 
the period.^ The chances between such unequal adversaries 
were adjusted by burying the man to his waist, tying his left 
hand behind his back, and arming him only with a mace, 

' Jur, Provin. Saxon. Lib. I. art. 48. 

2 Assises de Jerusalem, cap. 266, 267, 

3 Jur. Provin. Alamann. cap. Ix. ^ 5. 

^ Jur. Provin. Saxon. Lib. I. c. 42, 43. 

5 Belitz de Duellis Germanorum p. 9, (Vitembergse, 1717.) 

6 Jur. Provin. Alamann, cap. ccxxix. § 2. This chapter is omitted m 
the French version of the Speculum Suevicum. 



I40 THE WAGER OF BATTLE. 

while his fair opponent had the free use of her limbs and 
was provided with a heavy stone securely fastened in a piece 
of stuff. ^ 

The liability of ecclesiastics to the duel varied with the 
varying relations between the church and state. As early as 
the' year 819, Louis-le-Debonnaire, in his additions to the 
Salic law, directs that, in doubtful cases arising between lay- 
men and ecclesiastics, the duel between chosen witnesses 
shall be employed, but that when both parties are clerical it 
shall be forbidden. ^ This restriction was not long observed. 
A decree of the Emperor Guy, in 892, gives to churchmen 
the privilege of settling their quarrels either by combat or 
by witnesses, as they might prefer;^ and, about the year 945, 
Atto of Vercelli complains that the tribunals allowed to eccle- 
siastics no exemption from the prevailing custom.^ Yet so 
far was this from being deemed a hardship by the turbulent 
spirits of the period, that clerks not infrequently disdained 
to sustain their rights by the intervention of a champion, 
and, yielding to warlike inspirations, boldly entered the lists 
themselves. In 1080 the Synod of Lillebonne adopted a 
canon punishing by a fine such belligerent churchmen as in- 
dulged in the luxury of duels without having first obtained 
from their bishops a special license authorizing it.^ About 

' Konigswarter, op. cit. p. 221 — In many places, however, crimes which 
a man was forced to disprove by combat were subject to the ordeal of hot 
iron or water when the accused was a woman. Thus, by the Spanish law 
of the thirteenth century, " Muger . . salvese porfierro caliente; e si varon 
fuere legador . . salvese por lid." — Fuero de Baeca. (Villadiego, Fuero 
Juzgo fol. 317^) 

2 Capit. Ludov. Pii I, ann. 819, cap. x. 

3 UgheUi, T. II. p. 122 (Du Cange). 

* Addunt insuper, quoniam si aliquis militum sacerdotes Dei in crimine 
pulsaverit per pugnam sive singular! certamine esse decernendum — De 
Pressuris Eccles. 

5 Clericus ... si duelhun sine episcopi licentia susceperit . . . aut as- 
sultum fecerit, episcopis per pecuniam emendetur, — Orderic. Vital. P. II. 
Lib. v. c. 5. 



LIABILITY OF ECCLESIASTICS. 141 

the same period, Geoffry, Abbot of Vendome, in a letter to 
the Bishop of Saintes, complains of one of his monks who 
had fought in a judicial duel with a clerk of Saintes.^ The 
practice continued, and though forbidden by Pope Innocent 

II. in 1140,^ Alexander III. and Clement III. found it neces- 
sary to repeat the prohibition before the close of the century.^ 
Yet Alexander, when appealed to with respect to a priest of 
the Campagna who had lost a finger in a duel, decided that 
neither the offence nor the mutilation debarred him from the 
exercise of his sacerdotal functions, and only directed him 
to undergo due penance.* The progress of the age, how- 
ever, was shown wheU; about thirty years afterwards, Celestin 

III. .pronounced sentence of deposition in a similar case 
submitted to him ;^ and this was formally and peremptorily 
confirmed by Innocent III. at the great council of Lateran 
in 1 215.'' 

That the peaceful ministers of Christ should vindicate 
their rights with the sword, either personally or by proxy, 
was a sacrilege abhorrent to pious minds. As early as the 
middle of the ninth century, Nicholas I., who did so much 
to establish the supremacy of the church, endeavored to 
emancipate it from this necessity, and declared that the duel 
was not recognized by the ecclesiastical law.'^ The utmost 
privilege which the secular law accorded the clergy, how- 
ever, was the right of presenting a champion in the lists, 
which zealous churchmen naturally resented as an arbitrary 
injustice.^ How thoroughly it was carried out in practice, 
notwithstanding all remonstrances, is shown by a charter 

' Goffrid. Vindocinens. Lib. IIL Epist. 39. 2 D^ Cange. 

3 Ut clerici non pugnent in duello, nee pro se pugiles introducent. — 
Chron. S. ^gid. in Brunswig. — Can. I. Extra, Lib. v. Tit. xiv. 
* Can. I. Extra, Lib. I. Tit. xx. 
^ Can. 2 Extra, Lib. v. Tit. xiv. 
s Concil. Lateran. IV. can. 18. 

' Cap. Monomaehiam caus. IL q. 5. — Nicolai PP. I. Epist. 148. 
^ Atton. .Vercell. De Pressuris Eccles. Pt. I. 



142 THE WAGER OF BATTLE. 

granted in 1024 by St. Stephen of Hungary to the monas- 
tery of St. Adrian of Zala, by which, among other privileges, 
the pious king bound himself to supply a champion in all 
suits against the abbey, in order that the holy meditations of 
the monks might not be interrupted.^ Not long after, in 
1033, the celebrated abbey of St. Clement at Pescara was 
involved in a dispute concerning some lands which had been 
cut off from its possessions by a change in the course of the 
the river Pescara, and had been seized by the lords of the 
contiguous territory. At an assembly of the magnates of the 
district it was adjudged that the matter must be settled by the 
duel. l"he night before the combat was to take place the 
holy abbot Guido, after enjoining earnest prayers by all the 
monks, sallied forth alone to the banks of the stream and 
stretching forth his staff adjured the waters to repair the evil 
which they had wrought under the impulsion of the devil. 
The river forthwith returned to its old channel, and next 
morning the multitude which assembled to witness the com- 
bat were astounded to see the miracle. The godless men 
who had seized on the possessions of the church humbly 
sought pardon for their sin, and the abbey remained in quiet 
enjoyment of its rights.^ 

The scandal of maintaining the claims of the church by 
carnal weapons and bloodshed was not soon suppressed. In 
1 1 12 we find a certain Guillaume Maumarel, in a dispute 
with the chapter of Paris concerning some feudal rights over 
the domain of Sucy, appearing in the court of the Bishop of 
Paris for the purpose of settling the question by the duel, 
and though the matter was finally compromised without 
combat, there does not seem to have been anything irregular 
in his proceeding.^ So, about the same period, in a case 
between the abbey of St! Aubin in Anjou and a neighboring 

' Chart. S. Stephani. (Battliyani, Legg. Eccles. Hung. T. I. p. 384.) 

2 Chron. Piscariens. Lib. II. (D'Achery, II. 951.) 

3 Cartulaire de I'Eglise de Paris, I. 378. 



LIABILITY OF ECCLESIASTICS. I43 

knight, involving some rights of property, the monks not 
only challenged their adversary, but the duel was held in the 
seignorial court of another monastery;^ and in 1164, we find 
a duel decreed at Monza, by the Archbishop of Cologne as 
chancellor of Italy, between an abbey and a layman of the 
vicinity.^ That such cases, indeed, were by no means un- 
common is shown by their special prohibition in 1195 ^7 
Celestin III.^ Yet, notwithstanding the repeated efforts of 
the Holy See, it was almost impossible for the church to 
exempt itself from the universal liability. Though in 11 74 
Louis VII. granted a special privilege of exemption to the 
church of Jusiers and its men, on the ground that he was 
bound to abrogate all improper customs,* still no general 
reform appears to have been practicable. In 1239 a knight 
of Orleans, Gui de Santillac, testified before the royal coun- 
cil that the chapter of Saint-Aignan had appealed him in 
wager of battle.^ As late as the year 1245, some vassals of 
the chapter of Notre Dame at Paris denied the service due 
by them, and demanded that the claim of the chapter should 
be made good by the wager of battle. That they had a 
legal right to do so is shown by the fact that the churchmen 
were obliged to implore the intervention of the Pope ; and 
Innocent IV. accordingly granted to the chapter a special 
privilege, in which, on the ground that single combats were 
forbidden by the canons, he declared that the church of 
Notre Dame should be entitled to prove its rights by wit- 
nesses, deeds, and other legitimate proofs, notwithstanding 
the custom existing to the contrary.^ It was probably his 
interference in this case that led him a few years later, in 

1 The charter recording the suit and its results is given by Baluze and 
Mansi, Miscell. III. 59. 

2 Ibid, p. 134. 3 Can, I Extra, Lib, v. Tit. xxxv. 
* Du Boys, Droit Criminel des Peuples Modernes, II. 187. 

^ Actes du Parlement de Paris, T. I. p. cccvii. (Paris, 1863.) 
6 Contraria consuetudine non obstante. — Cart, de I'E^lise de Paris, II. 
393-4. 



144 THE WAGER OF BATTLE. 

1252, to issue a decretal in which he pointed out the mani- 
fest hardship of forcing the clergy in France, when prose- 
cuting such claims against their serfs, to have recourse to 
the duel, and thus, under the canon law, to forfeit their posi- 
tions. To remedy this he proclaimed as a general rule that 
all verdicts should be void when obtained against clerks 
either by means of the duel or through reason of their refus- 
ing the combat.^ In this. Innocent was consistent, for one 
of the accusations which he had brought against the Emperor 
Frederic II. when the latter was deposed at the Council of 
Lyons in 1245 was that he had forced ecclesiastics to undergo 
the duel, to the confusion of all distinctions between clerk 
and layman. 2 Yet even a century later, when the judicial 
duel was going out of fashion, a bishop of Liege so vexed 
the burghers of Louvain, by repeated citations to the com- 
bat to settle disputed questions, that John III. Duke of Bra- 
bant was obliged to appeal to the Emperor Charles IV., who 
accordingly wrote to the bishops of Treves, Cambrai, and 
Verdun desiring them to find some means of putting an end 
to the bellicose tendencies of their episcopal brother.^ 

The customs and prejudices of the time were evidently too 
strong to be easily eradicated. It is therefore not surprising 
to find that the prelates, acting in their capacity of temporal 
seigneurs, should have been accustomed to award the duel 
as freely as any other form of legal procedure. To do this 
was not only one of the privileges which marked the feudal 
superior, but was also a source of revenue from the fees and 
penalties thence accruing, and these rights were as eagerly 
sought and as jealously guarded by the spiritual lords as by 
the warlike barons. It would scarce be necessary to multi- 
ply instances, but I may mention a charter granted by Fulk 
Nera, Count of Anjou, about the year 1010, bestowing these 

' Archives Administratives de Reiiias, T. I. p. 733. 

2 Harduin. Concil. VII. 384. 

3 Proost, Legislation des Jugements de Dieu, p. 19. 



UNDER ECCLESIASTICAL JURISDICTION. 145 

rights on the abbey of Beaulieu in Touraine/ and one by the 
Emperor Henry III., in 1052, to the bishop and church of 
Volterra in Italy. ^ Some conscientious churchmen objected 
to a practice so antagonistic to all the teachings of the. re- 
ligion of which they were professors, and lifted up their 
voices to check the abuse. Thus, about the close of the 
eleventh century, we find the celebrated canonist, St. Ivo of 
Chartres, rebuking the Bishop of Orleans for ordering the 
combat to decide an important suit in his court. ^ Ivo even 
carried out his principles to the sacrifice of the jurisdiction 
usually so dear to the prelates of his day, for in another case 
he refused to give judgment because it necessarily involved 
a trial by battle, and he eluded the responsibility by trans- 
ferring the cause to the court of the Countess of Chartres.* 
A century later the celebrated Peter Cantor resolutely de- 
clared that as a priest he would in no case furnish relics on 
which the preliminary oaths were to be taken, for churchmen 
were prohibited from being concerned in bloodshed.^ These 
precepts and examples were equally unavailing. Church- 
men continued to award the wager of battle, and resolutely 
resisted any invasion of their privileges. In 1 150 the statutes 
of the chapter of Lausanne direct that all duels shall be 
fought before the provost — and the provost was Arducius, 
Bishop of Geneva.® Even in the thirteenth century, in the 
archbishop's court or officiality of Rheims, the duel was a 
matter of course / and a case is recorded, occurring in 1224, 

1 Du CangCj s. v. Bellum. 

2 Muratori, Antiq. Ital. Dissert. 39. — Among various other examples 
given by the same author is one of the year loio, in which the court of 
the bishop of Aretino grants the combat to decide a case between a monas- 
tery and a layman. 

3 Ivon. Epist. cxlviii. * Ivon. Epist. ccxlvii. 

5 Pet. Cantor. Verb. Abbreviat. cap. Ixxviii. 

6 Migne's Patrologia, T. 188, p. 1287. 

7 Lib. Pract. de Consuetud. Remens. passim. (Archives L^gisl. de 
Reims.) 

13 



T46 THE WAGER OF BATTLE. 

in a dispute about the ownership of a house, which was 
decided by a duel in the court of the abbey of St. Remy, 
where the abbot presided over the lists and they were 
guarded by the royal officials.^ In 1239 the Bishop of Or- 
leans contested with the king as to the right of the former to 
the jurisdiction of the duel in his diocese ;^ and in a judgment 
rendered in 1269, concerning a combat waged within the 
limits of the chapter of Notre Dame of Paris, we find that the 
first blows of the fight, usually known as '' ictus regis," or 
" les cous lou roi," are alluded to as " ictus capituli."^ How 
eagerly these rights were maintained is apparent from nume- 
rous decisions concerning contested ca^es. Thus, an agree- 
ment of 1193, between the Countess of St. Quentin and the 
chapter of Notre Dame, respecting the disputed jurisdiction 
of the town of Viry, gives the official of the chapter the 
right to decree duels, but places the lists under the supervi- 
sion of both parties, and divides the spoils equally between 
each.* A charter of 1199, concerning the village of Marne, 
. shows that the sergeant, or officer of the chapter, had the 
cognizance of causes up to the gaging of battle, after which 
further proceedings were reserved for the court of the 
bishop himself.^ In 1257, while St. Louis was exerting him- 
self with so much energy to restrict the custom, an abbey is 
found engaged in a suit with the crown to prove its rights to 
decree the duel, and to enjoy the fees and mulcts thence 
arising;^ and in 1277 a similar suit on the part of the abbey 
of St. Vaast d' Arras was decided in its favor. '^ From a ver- 
dict given in 1293, the right of the chapter of Soissons to 

1 Archives Adminst. de Reims, T. I. p, 822. 

2 Actes du Parlement de Paris, T. I. p. cccvii. (Paris, 1 863.) 

a Cartulaire de I'Eglise de Paris, III. 433. After the first blows, the 
parties could be separated on payment of a fine to the court, from the i-e- 
cipient of which the name is evidently derived. 

1 Cartulaire de I'Eglise de Paris, I. 234. ^ ibid. I. 79-80. 

« Les Olim, I. 24. 

7 Actes du Pari, de Paris, T. I. No. 2122, C. p. 197. 



MERCANTILE LAW. 147 

decree the judicial combat appears to be undoubted, as well 
as the earnestness of the worthy ecclesiastics to exercise the 
privilege.^ Even more significant is a declaration of the 
authorities of Metz, as late as 1299, by which the granting 
of all wagers of battle is expressly admitted by the civil 
magistrates of the city to appertain to the court of the arch- 
bishop;^ and even in 131 1 a bishop of St. Brieuc ordered a 
duel between two squires pleading in his court, in conse- 
quence of high words between them. From some cause the 
combat did not take place, and the Christian prelate seized 
the arms and horses of the parties as his mulct. They ap- 
pealed to the Parlement of Paris, which ordered the restora- 
tion of the confiscated articles, and fined the bishop for his 
disregard of the royal edicts prohibiting the single combat.^ 
Not long before, Beaumanoir had definitely asserted that 
the church could not be concerned in cases which involved 
the judicial duel, or the infliction of death or mutilation;* 
but the church was not disposed to admit this limitation on 
its jurisdiction, and though the suppression of the wager of 
battle by the crown deprived it in common with the other 
seignorial courts of this special source of profit, it continued 
in its multifarious capacity of seigneur to execute the cruel 
laws of the period with undiminished activity.^ 

There was one jurisdiction which held itself more care- 
fully aloof from the prevailing influence of barbarism — that 
of the Admiralty Courts, which covered a large portion of 
practical mercantile law. This is a fact easily explicable, 
not only from the character of the parties and of the trans- 

1 Actes dii Pari, de Paris, T. I., p. 446. 

2 Du Cange, s. v. Arraniiatio. 3 Les Olim, III. 679. 

4 Voirs est que tuit li cas ou il pot avoir gages de bataille ou peril de 
perdre vie ou membre, doivent estre justicie par le laie justice; ne ne s'en 
doit sainte Eglise meller. — Coutumes du Beauvoisis, cap. xi. art. 30. 

5 See the Registre Criminel de la Justice de St. Martin- des-Champs. 
(Paris, 1877.) 



148 THE WAGER OF BATTLE. 

actions for which those courts were erected, but from the 
direct descent of the maritime codes from the Roman law, 
less modified by transmission than any other portions of 
mediaeval jurispruence. These codes, though compiled at a 
period when the wager of battle flourished in full luxuriance, 
have no reference to it whatever, and the Assises de Jerusa- 
lem expressly allude to the Admiralty Courts as not admitting 
the judicial duel in proof,^ while an English document of 
12 Edward III. attests the same principle.^ When, how- 
ever, the case was one implying an accusation of theft or 
deception, as in denying the receipt of cargo, the matter 
entered into the province of criminal law, and the battle 
trial might be legitimately ordered.^ 

REGULATIONS OF THE DUEL. 

The forms and ceremonies employed in the judicial duel 
may furnish an interesting subject of investigation for the 
admirers of chivalry, but they teach in their details little 
concerning the habits and modes of thought of the Middle 
Ages, and for the most part are therefore interesting only to 
the pure archaeologist. Although minute directions have 
come down to us in the manuals compiled for the guidance 
of judges of the lists, to enumerate them in their varying 
fashions would hardly be worth the necessary space. Yet 
there are some details which are of interest as illustrating 
both the theory and practice of the duel in its legal aspect. 
Thus the general principle on which the combat was con- 
ducted was the absolute assertion by each party of the 
justice of his cause, confirmed by a solemn oath on the 
Gospels, or on a relic of approved sanctity, before the con- 

' En la cort de la mer na point de bataille por prueve ne por demande 
de celuy veage. — Assises de Jerusalem, cap, xliii. 

2 Pardessus, Us et Coutumes de la Mer. 

3 Livres de Jostice et de Plet, Liv, vn. Tit. iv. § 2. 



PENALTIES FOR DEFEAT. 149 

flict commenced.^ Defeat was thus not merely the loss of 
the suit, but was also a conviction of perjury, to be punished 
as such ; and in criminal cases it was also a conviction of 
malicious prosecution on the part of a worsted appellant. 
That it was regarded as much more serious than the simple 
loss of a suit is shown by the provisions of the custom of 
Normandy, whereby a vanquished combatant was classed 
with perjurers, false witnesses, and other infamous persons, 
as incapable thenceforth of giving evidence in courts, or of 
serving on a jury.^ Accordingly, we find the vanquished 
party, whether plaintiff or defendant, subjected to penalties 
more or less severe, varying with the time and place. 
Thus, in 819, Louis-le Debonnaire decreed that, in cases 
where testimony was evenly balanced, one of the witnesses 
from each side should be chosen to fight it out, the de- 
feated champion suffering the usual penalty of perjury — 

• According to Bracton, the appellant in criminal cases appears always 
obliged to swear to his own personal knowledge, visu ac anditu, of the 
crime alleged. This, however, was not the case elsewhere. Among the 
glossators on the Lombard law, there were warm disputes as to the pro- 
priety, in certain cases, of forcing one of the contestants to commit per- 
jury. The matter will be found treated at some length in Savigny's 
Geschichte d. Rom, Recht, B. iv. pp. 159 sqq. 

The formula of the oath as given in the Fleta is as follows: The par- 
ties take each other by ihe hand and first the appellee swears, " Hoc 
audis, homo quem per manum teneo, qui A. .te facis appellari per nomen 
baptismi tui, quod ego C. fratrem tuum, vel alium parentem vel dominum 
non occidi, vel plagam ei feci ullo genere armorum per quod remotior esse 
debuit a vita et morti propinquior; sic me Deus adjuvet et hsec Sancta 
etc." Then the appellant responds: " Hoc audis homo quem per manum 
teneo, qui te R. facis appellari per nomen baptismi tui, quod tu es per- 
jurus et ideo perjurus quia tali anno, tali die, tali hora et tali loco nequi- 
ter et in felonia occidisti C. fratrum meum tali genere armorum, unde obiit 
infra triduum; sic me Deus etc." — Lib. I. cap. xxxii. W 28, 29. 

In the German law the oath was simpler, but quite as absolute. — ^Jur. 
Prov. Saxon, Lib. I. cap. Ixii. — Sachsische Weichbild xxxv. 8. 

2 Cod. Leg. Normann. P. I. c. Ixiv. (Ludewig. Reliq. MSS. T. VII. 
p. 270. — Anc. Gout, de Normandie (Bourdot de Richebourg, IV. 29). 

13* 



150 THE WAGER OF BATTLE. 

the loss of a hand; while the remaining witnesses on the 
losing side were allowed the privilege of redeeming their 
forfeited members at the regular legal rate.^ William the 
Conqueror imposed a fine of forty sous on the losing side im- 
partially ;^ this was increased to sixty sous by the compila- 
tion known as the laws of Henry I. f and the same regula- 
tion is stated by Glanville, with the addition that the defeated 
person was forever disqualified as a witness or champion ;* 
while in the time of Edward II. the loser, except in cases of 
felony, paid to the victor forty sous besides a small gratifi- 
cation under the name of ruaille, in addition to the loss of 
the suit.^ By the Lombard customs, early in the eleventh 
century, the appellant, if vanquished, had the privilege of 
redeeming his hand; the defendant, if defeated, lost his 
hand, and was of course subject in addition to the penalties 
of the crime of which he was proved guilty.^ About the 
same time, the Bearnese legislation embodies a similar prin- 
ciple in a milder form, a fine of sixty-six sous Morlaas being 
imposed impartially on the losing party. ^ In process of 
time, this system was abandoned in some countries. The 
English law of the thirteenth century admitted the justice of 
the lex talionis in principle, but did not put it in practice, a 
vanquished appellant in capital cases being merely im- 
prisoned as a calumniator, while the defendant, if defeated, 

' Capit. Ludov, Pii ann. 819, cap. x. A somewhat similar provision 
occurs in the L. Burgund. Tit. xlv. et Ixxx, 

2 L, Guillelmi Conquest. III. xii. (Thorpe, I. 493.) — A previous law, 
however, had assessed a Norman appellant sixty sous when defeated. 
(Ibid. II. ii.) 

3 L. Henrici I. cap. lix. \ 15. 

* Glanvil. de Leg. Angl. Lib. II. cap. iii. 

5 Solement ceux vainqus sont quittes ou lour clients pur eux rendre aux 
combattants vanquishours 40 sous en nosme de recreantise et ruaille peur 
la bourse a mettre eins ses deniers oustre le jugement sur le principall. — 
Home's Myrror of Justice, cap. iii. sect. 23. 

6 Formul. Vetus in L. Longobard. (Georgisch, p. 1276.) 

7 For d'Oloron, Art. 21. 



LEX TALIONIS. 151 

was executed, and his property confiscated.^ The same dis- 
tinction is to be found in the contemporary custom of Nor- 
mandy.^ So, by the code in force in Verona in 1228 the 
Podesta in criminal cases had the power of ordering the 
duel, and of punishing at his pleasure the accuser if van- 
quished — the accused when convicted of course undergoing 
the penalty of his crime. ^ 

Mediaeval legislation, however, was not usually so lenient 
to a worsted appellant. The application of the lex talionis 
to the man who brought a false charge, thus adjudging to 
him the penalty which was incurred by the defendant if con- 
victed, was widely current during the Middle Ages. This 
principle is to be found enunciated in the broadest and most 
decided manner in the ecclesiastical law,* and it was natu- 
rally brought into play in regulating the fate of those engaged 
in the wager of battle. Thus Guillaume-le-Breton states that 
when Philip Augustus, in 1203, wrested Normandy from the 
feeble grasp of John Lackland, one of the few changes which 
he ventured to introduce in the local laws of the duchy was 
to substitute this rule of confiscation, mutilation, or death, 
according to the degree of criminality involved in the accu- 
sation, for the comparatively light pecuniary mulct and loss 
of legal status previously incurred by a worsted appellant.^ 

' Bracton, Lib. ill. Tract, ii. cap. 18, \ 4. In another passage, Brac- 
ton gives a reason for this clemency — " Si autem victus sit in campo . . . 
quamvis ad gaolam mittendus sit, tamen sit ei aliquando gratia de miseri- 
cordia, quia pugnat pro pace." (Ibid. cap. 21, \ 7.) See also the Fleta, 
Lib. I. cap. xxxii. \ 32. 

2 Etab. de Normandie, Tit. " De prandre fame a force" (Marnier). 

3 Lib. Juris Civihs Veronse, cap. 78 (p. 63). 

* Qui calumniam illatam non probat, poenam debet incurrere quam si 
probasset reus utique sustineret. — Can. Qui calumniam Caus. v. q. vi. 
(Decreti P. II.) 

s ... ad poenas exigat sequas, 
Victus ut appellans sive appellatus, eadem 
Lege ligaretur mutilari aut perdere vitam. 
Moris enim extiterit apud illos hactenus, ut si 



152 THE WAGER OF BATTLE. 

The same system is followed throughout the legislation of 
St. Louis, whether the punishment be light or capital, of an 
equal responsibility on both parties.^ In capital cases, when 
champions were employed, the principals were held in 
prison with the cord around them with which the defeated 
party was to be hanged; and if one were a woman, for the 
cord was substituted the spade wherewith she was to be 
buried alive. ^ The same principle of equal responsibility 
prevailed throughout the Frankish kingdoms of the East, 
where, in an appeal of murder, as we have seen, the appel- 
lant fought by means of one of his witnesses, and the defen- 
dant personally. In civil cases, in the Bourgeois Court, the 
party defeated, including the plaintiff, if his side was the 
loser, was forever debarred from giving testimony, and had 
no future standing in court; while in serious criminal cases, 
in both upper and lower courts, either side, when defeated, 
was hanged with the utmost impartiality;^ and it finally 
established itself in England, where in the fourteenth cen- 
tury, we find it positively declared as an imperative regula- 
tion by Thomas, Duke of Gloucester, in an elaborate treatise 
on the rules of single combat printed by Spelman.* 

Appellans victus in causa sanguinis esset, 
Sex solidos decies cum nummo solveret uno 
Et sic impunis, amissa lege, maneret: 
Quod si appellatum vinci contigeret, omni 
Re privaretur et turpi morte pern-et. 

Guillielmi Brito. Phillippidos Lib, vill. 
It will be observed that the preexisting Norman custom here described 
is precisely that indicated above by Glanville. 

^ E. g. Etablissements Lib. I. cap. 27 and 91. — " Cil c[ui seroit vaincus 
seroit pendus" (cap. 82). 

2 Beaumanoir, chap. Ixiv. § 10, 

3 Assises d'Antioche, Haute Cour, ch. xi.; Assises des Bourgeois, ch. 
vi. vii. See also Assises de Jerusalem, cap. 317. 

* Recta fides et sequitas et jus armorum volunt ut appellans eandem in- 
currat poenam quam defendens, si is victus fuerit et subactus. — Formula 
Duelli, apud Spelman. Glossar. s. v. Camptis. 



I 



LEX TALIONIS. 153 

In Germany, however, the custom was not uniform. In 
the Sachsenspiegel, and in one text of the Schwabenspiegel, 
the principle is laid down that a defeated appellant escaped 
with a fine to the judge and to his adversary, while the de- 
fendant, if vanquished, was visited with the punishment due 
to his crime, or even with a heavier penalty ;^ while the 
Saxon burgher law and another text of the Suabian code 
direct that whichever party be defeated should lose a hand, 
or be executed, according to the gravity of the crime 
alleged.^ An exceptional case, moreover, was provided for, 
in which both antagonists might suffer the penalty ; thus, 
when a convicted thief accused a receiver of stolen goods of 
having suggested the crime, the latter was bound to defend 
himself by the duel, and if defeated, both combatants were 
hanged with the strictest impartiality.^ That these penalties 
were not merely nominal is shown by a case which occurred 
at Frankfort in 1369, when the divine interference was re- 
quisite, not to determine the victor, but to evade the enforce- 
ment of the law. Two knights, Zierkin von Vola and Adolf 
Hanche, who had married two sisters, quarrelled over the 
inheritance of a deceased brother-in-law, and agreed to 
settle their difference by the duel. When the appointed day 
came, October 12, they entered the lists on their chargers, 
prepared to do battle to the death, while their pious wives 
were earnestly praying God to soften their hearts and in- 
cline them to peace. These prayers were heard. With a 
mutual impulse the two warriors leaped from their horses, 
throwing themselves into each other's arms and exclaiming, 
"Brother, I confess myself vanquished." The chief magis- 
trate of the city, who presided over the combat, was not dis- 
posed to deprive the spectators of their promised entertain- 

i Jur. Provin. Saxon, Lib. I. c, 63. — Jur. Provin. Alamann. cap. 
ccclxxxvi. ^§ 19, 20. (Ed. Schilter.) 

2 Sachische Weichbild 82. — Jur, Provin. Alamann. cap. clxviii. g 20, 
clxxii. I 18. (Ed. Senckenberg.) 

3 Ibid. cap. ccxix. § 6. (Ed. Schilter.) 



154 THE WAGER OF BATTLE. 

ment, and indignantly declared that the law of the duel did 
not permit both antagonists to depart unhurt, for the one who 
yielded must be put to death; and he confirmed this sen- 
tence by a solemn oath that one or the other should die 
before he would taste food. Then an affecting contest arose 
between the late antagonists, each one proclaiming himself 
the vanquished and demanding the penalty on his own head, 
when suddenly divine vengeance visited the bloody and re- 
morseless judge, who fell dead, thus fulfilling his impious 
vow that he would not eat until he had a victim.^ 

It was probably as an impressive symbol of the penalties 
affixed by law to defeat in these combats that in some places 
the suggestive custom was in force of placing in the lists two 
biers in readiness for their ghastly occupants. In a duel 
which occurred at Augsburg in 1409, between two men 
named Marschalck and Hachsenacker, the former threw his 
adversary on the ground, and then asked him what he would 
have done had he been the victor. Hachsenacker grimly 
replied that he would have slain his foe, whereupon Mars- 
chalck despatched him, and placing himself in his bier 
caused himself to be carried to the church of St. Ulric, 
where he returned thanks for his victory.^ 

The most hideous exaggeration of the system, however, 
was found in the Frankish kingdoms of the East, which re- 
served a special atrocity for women — one of the numerous 
instances to be observed in mediaeval law of the injustice 
applied habitually to the weaker sex. When a woman ap- 
peared, either as appellant or defendant, in the lists by her 
champion, if he was defeated she was promptly burnt, no 
matter what was the crime for which the duel occurred — 
and as many accusations could only be determined by the 
wager of battle, she had no choice but to undergo the 
chance of the most dreadful of deaths.^ 

' Chron. Cornel. Zanfliet ann. 1369 (Mart. Ampl. Coll. V. 293-4.) 

2 Chron. Augustan. (Pistor. III. 684, Ed. 1726.) 

3 Assis. Hierosol. Alta Corte cap. cv. (Canciani, V. 208.) 



PUNISHMENT OF DEFAULT. 155 

It was customary to require the parties to give security 
for their due appearance at the appointed time, various fines 
and punisimients being inflicted on defaulters. By the law 
of both Northern and Southern Germany, when default was 
made by the defendant he was held guilty of the crime 
charged upon him : and if he was allowed the privilege of 
redeeming hand or life either as defendant or appellant, he 
was declared infamous, and deprived of the protection of 
the law. According' to some MSS., indeed, all the posses- 
sions of a defaulter were forfeited, either to his heirs, or to 
his feudal superior.^ In a case occurring in the twelfth cen- 
tury in Hainault, between a seigneur and a man whom he 
claimed as a serf, the latter demanded the duel, which was 
allowed, but on the appointed day he failed to appear by 
nine o'clock. His adversary had waited for him since day- 
break, and claimed the verdict which was awarded him by 
the council of Hainault. .At this moment the missing man 
presented himself, but was adjudged to be too late, and was 
delivered to his claimant as a serf. According to the cus- 
tom of Flanders, indeed, the combatant who failed to appear 
suffered banishment, with confiscation of all his possessions.^ 
This extreme rigor, however, did not obtain universally. 
Among the Bearnese, for instance, the forfeiture for a default 
was only sixteen sous Morlaas.^ By the English law, the de- 
faulter was declared infamous.* The Scandinavians punished 
him popularly by erecting a ^'nithstong" — pertica execra- 
iioiiis — a post inscribed with defamatory runes, and so fla- 
grant was this insult considered, that finally it was pro- 
hibited by law under pain of exile. ^ 

' Jur, Provin. Saxon, Lib. I. c. d^)-) ^5- — Sachsisclie Weichbild xxxv. 
Jur. Provin. Alamann. cap. ccclxxxvi. \ 31. (Ed. Schilter.) — Cap. 
clxxiii. l\ 7, 8. (Ed. Senckenb.) 

2 Proost, Legislation des Jugements de Dieu, pp. 18, 21. 

3 For de Morlaas, Rubr. iv. art. 5. 

* Home's Myrror of Justice, cap. iv. sect. 13, 

3 Schlegel Comment, ad Gragas \ 31. — Gragds sect. Viii. cap. 105. A 
fanciful etymologist might trace to this custom the modern phrase of 
"posting a coward." 



156 THE WAGER OF BATTLE. 

The bail, of course, was liable for all legal penalties in- 
curred by a defaulter, and occasionally, indeed, was made to 
share the fate of his principal, when the latter appeared and 
was defeated. In the law of Southern Germany, according 
to one text, the bail under these circumstances was liable to 
the loss of a hand, which, however, he could redeem, while 
another version makes him suffer the penalty incurred by 
his principal.^ This latter rule is announced in a miracle 
play of the fourteenth century, where a stranger knight at 
the court of Paris, compelled to fight in defence of the honor 
of the king's daughter, is unable to find security. The queen 
and princess offer themselves as hostages and are accepted, 
but the king warns them — 

Dame, par Dieu le roy celestre! 
Bien vous recevray pour hostage; 
Mais de tant vous fas-je bien sage, 
Se le dessus en peut avoir 
Ardr^, je vous feray ardoir 
Et mettre en cendre.* 

As regards the choice of weapons, much curious anecdote 
could be gathered from the pages of Brantome and others 
learned in punctilio, without throwing additional light upon 
mediaeval customs. It may be briefly observed, however, 
that when champions were employed on both sides, the law 

1 Jur. Provin. Alamann. cap. ccclxxxvi. g 32 (Ed. Schilter); cap. 
clxxiii. § 13 (Ed. Senckenberg). 

2 Un Miracle de Notre-Dame d'Amis et d'Amille. (Monmerqu^ et 
Michel, Th^at. Fran9ais au Moyen-Age, p. 238.) 

Another passage in the same play signalizes the equality of punishment 
for appellant and defendant in cases of defeat: — 
— Mais quant il seront 
En champ, jamais n'en ysteront 
Sans combatre, soiez-en fis, 
Tant que I'un en soit desconfis; 
Et celui qui vaincu sera, 
Je vous promet, pendu sera : 
N'en doubte nulz. 



CHOICE OF WEAPONS 



157 



appears generally to have restricted them to the club and 
buckler, and to have prescribed perfect equality between 
the combatants.^ An ordonnance of Philip Augustus, in 
1 215, directs that the club shall not exceed three feet in 
length.^ When the principals appeared personally, it would 
seem that in early times the appellant had the choice of 
weapons, which not only gave him an enormous advantage, 
but enabled him to indulge any whims which his taste or 
fancy might suggest, as in the case of a Gascon knight in 
the thirteenth century, who stipulated that each combatant 
should be crowned with a wreath of roses. As every detail 
of equipment was thus subject to the caprice of the chal- 
lenger, those who were wealthy sometimes forced their 
poorer adversaries to lavish immense sums on horses and 
armor. ^ Where, however, the spirit of legislation became 
hostile to the wager of battle, this advantage was taken from 
the appellant. Frederic II. appears to have been the first 
to promulgate this rational idea, and, in decreeing that in 
future the choice of arms shall rest with the defendant, he 
stigmatizes the previous custom as utterly iniquitous and un- 
reasonable.* In this, as in so many other matters, he was in 
advance of his age, and the general rule was that neither 
antagonist should have any advantage over the other — except 
the fearful inequality, to which allusion has already been 
made, when a roturier dared to challenge a gentleman.^ In 
the law of Northern Germany care was taken that the advan- 
tage of the sun was equally divided between the combatants; 
they fought on foot, with bare heads and feet, clad in tunics 
with sleeves reaching only to the elbow, simple gloves, and no 
defensive armor except a wooden target covered with hide, 
and bearing only an iron boss; each carried a drawn sword, 

' E.g. Constit. Sicular. Lib. ii. Tit. xxxvii. \ i. 
2 Lauriere, Table des Ordonn. p. 10. 
"^ Revue Historique de Droit, 1861, p. 514. 
* Constit. Sicular, Lib. ii. Tit. xxxvii. \ 4. 
5 This, however, was not permitted by Frederic. (Ubi sup.) 
14 



158 THE WAGER OF BATTLE. 

but either might have as many more as he pleased in his 
belt ; if a combatant was too poor to provide a sword and 
target, the judge could supply what was requisite.^ Accord- 
ing to Upton, in the fifteenth century, the judges were bound 
to see that the arms were equal, but he admits that on many 
points there were no settled or definite rules. ^ In Wales, an 
extraordinary custom violated all the principles of equality. 
Under the Welsh law, twins were considered as one person, 
and as they were entitled to but one share in the patrimony 
of the family, so they were allowed to come into the field of 
combat as one man.^ In Russia, each combatant followed 
his own pleasure; and a traveller in the sixteenth century 
relates that the Muscovites were in the habit of embarrassing 
themselves with defensive armor to an extent which rendered 
them almost helpless, so that in combats with Poles, Lithua- 
nians, and Germans, they were habitually worsted, until 
judicial duels between natives and foreigners were at length 
prohibited on this account.* 

CHAMPIONS. 

Allusions have occurred above to the employment of 
champions, a peculiarity of these combats which received 
an application sufficiently extended to deserve some special 
notice. It has been seen that those unable to wield the 
sword or club were not therefore exempted from the duel, 
and even the scantiest measure of justice would require that 
they should have the right to delegate their vindication to 
some more competent vehicle of the Divine decision. This 
would seem originally to have been the office of some mem- 
ber of the family, as in the cognate procedure of sacramental 
purgation. Among the Alamanni, for instance, a woman 

' Jur. Provin. Saxon. I. 63. 

2 De Militari Officio Lib. 11, cap. viii. 

3 Book of Cynog, chap. xi. g 34, (Owen, II. 211.) 
■* Du Boys, op. cit. I. 611. 



I 



EMPLOYMENT OF CHAMPIONS. I59 

when accused could be defended by a kinsman *' cum tracta 
spata;"^ the same rule is prescribed by the Lombard law,^ 
and by that of the Angli and Werini ;^ while the universal 
principle of family unity renders the presumption fair that it 
prevailed throughout the other races in whose codes it is not 
specifically indicated. Restricted to cases of disability, the 
use of champions was a necessity to the battle ordeal ; but 
at a very early period the practice received a remarkable 
extension, which was directly in conflict with the original 
principles of the judicial duel, in permitting able-bodied 
antagonists to put forward substitutes, whether connected 
with them or not by ties of blood, who fought the battle for 
their principals. With regard to this there appears to have 
been a considerable diversity of practice among the races of 
primitive barbarians. The laws of the Franks, of the Ala- 
manni, and of the Saxons make no allusion to such a privi- 
lege, and apparently expect the principal to defend his 
rights himself, and yet an instance occurs in 590, where, in 
a duel fought by order of Gontran, the defendant was allowed 
to intrust his cause to his nephew, though, as he was accused 
of killing a stag in the king's forest, physical infirmity could 
hardly have been pleaded.* From some expressions made 
use of by St. Agobard, in his onslaught on the ordeal of 
battle, we may fairly presume that, under Louis-le-Debon- 
naire, "the employment of champions, in the Burgundian 
law, was, if not forbidden, at least unusual as respects the 
defendant, even in cases where age or debility unfitted him 
for the combat, while, on the other hand, it was allowed to 
the appellant.^ On the other hand, the Baioarian law, which 

' L. Alamann, Add. cap. xxi. 

2 L. Longobard. Lib. i. Tit. iii. | 6, and Lib. ii. Tit. Iv. | 12. 

3 L. Anglior. et Werinor. Tit. xiv. 

4 Greg. Turon. Hist. Lib. x. cap. x. In this case, both combatants 
perished, when the accused was promptly put to death, showing that such 
a result was regarded as proving the truth of the offence alleged. 

5 Horum enim causa accidit ut non solum valentes viribus, sed etiam 
infirmi et senes lacessantur ad certamen et pugnam etiam pro vilissimis 



l6o THE WAGER OF BATTLE. 

favored the duel more than any of the other cognate codes, 
alludes to the employment of champions in every reference 
to it, and with the Lombards the judicial combat and the 
champion seem to have been likewise convertible terms even 
with regard to defendants.^ In a charter of the latter half 
of the tenth century in France, recording a judicial duel to 
decide a contest concerning property, the judge, in ordering 
the combat, calls upon the antagonists to produce skilled 
champions to defend their claims at the time and place indi- 
cated, which would show that the principals were not ex- 
pected to appear personally. ^ Under the North German 
law it rested with the appellant to demand the duel either 
with or without champions. If the defendant was crippled, 
and was on that account obliged to appear by a hired cham- 
pion, then the appellant could put forward another to meet 
him. A defendant, moreover, who had suffered a previous 
conviction for theft or rapine was always obliged to appear 
personally. When the duel was decreed by the court, and 
not demanded by the appellant, then the accused could de- 
cline it if he could prove that the prosecutor had hired a 
champion.^ 

In all these provisions for the putting forward of substi- 
tutes in the duel there is something so repugnant to the fierce 
and self-relying spirit in which the wager of battle found its 
excuse, and the use of a professional gladiator is so incon- 
sistent with the pious reference to the judgment of God, 
which was alleged for the maintenance of the system, that 
some external reason is required to account for its introduc- 

rebus. (Lib. adv. Legem Gundobadi cap. vii.) Mitte unum de tuis, qui 
congrediatur mecum singular! certamine, ut probat me reum tibi esse, si 
Occident. (Lib. contra Judicium Dei cap. i.) 

^ Liceat ei per campionem, id est per pugaam, crimen ipsum de super 
se si potuerit ejicere. — L. Longobard. Lib. i. Tit. i. ^ 8. 

2 Proost, Legislation des Jugements de Dieu, p. 82. 

3 Jur. Provin. Saxon. Lib. I. art. 39, 48. — Sachsische Weichbild art. 
XXXV. 2, 4; art. Ixxxii. 2. 



I 



WITNESSES BECOMING CHAMPIONS. l6l 

tion. This reason is doubtless to be found in the liberty- 
allowed of challenging witnesses, to which allusion has 
already been made. The prevalence of this throughout 
Western Europe readily enabled parties, unwilling them- 
selves to encounter the risks of a mortal struggle, to put 
forward some truculent bravo who swore unscrupulously, 
and whose evidence would require him to be forced out of 
court at the sword's point. ^ 

Although the custom of hiring champions existed from a 
very early period, since the Frisian laws give the fullest 
license for employing and paying them,^ still, their identity 
with witnesses cannot be readily proved from the simple 
records of those primitive times. It becomes very evident, 
however, in the more detailed regulations of the twelfth and 
thirteenth centuries. In England, for instance, until the 
first statute of Westminster, issued by Edward I., in 1275, 
the hired champion of the defendant, in a suit concerning 
real estate, was obliged to assume the position of a witness, 
by swearing that he had been personally present and had 
seen seizin given of the land, or that his father when dying 
had enjoined him by his filial duty to maintain the defend- 
ant's title as though he had been present.^ This curious 
legal fiction was common also to the Norman jurisprudence 
of the period, where in such cases the champion of the plain- 
tiff was obliged to swear that he had heard and seen the 
matters alleged in support of the claim, while the opposing 
champion swore that they were false.* In a similar spirit, 
an earlier code of Normandy prescribes that champions shall 



' This was not always the case, however. In the primitive Icelandic 
laws the procuring of champions was accomplished by the curious custom 
to which I have already alluded, of buying and selling suits. 

2 Licet unicuique pro se campionem mercede conducere, si eum invenire 
potuerit. — L. Frision. Tit. xiv. cap. iv. 

8 Glanvil. de Leg. Angl. Lib. ii. cap. iii. 

* Cod. Leg, Norman. P. ii. cap. Ixiv. (LudewigReliq. MSS. VII. 416.) 



1 62 THE WAGER OF BATTLE. 

be taken to see the lands and buildings in dispute, before 
receiving the oath of battle, in the same manner as a jury of 
view.' We have seen that in the Assises d'Antioche it was 
requisite for a prosecutor or a plaintiff to have a witness who 
was ready to offer battle, in default of which the unsupported 
oath of the other party was sufficient to secure a verdict.^ If 
necessarily follows that this witness must in most cases have 
been a hired champion, and this connection between the two 
functions is further shown in the regulation of the Assises de 
Jerusalem and of the Sicilian constitutions, which directed 
that the champion should swear on the field of battle as to 
his belief in the justice of the quarrel which he was about 
to defend.^ An English legal treatise of the period, indeed, 
assumes that the principals can put forward only witnesses as 
substitutes, and gives as a reason why combats in civil suits 
were always conducted by champions, that in such cases the 
principals could not act as witnesses for themselves.* In a 
similar spirit, if on the field of battle one of the parties pre- 
sented a champion who was not receivable as a witness and 
had not been accepted by the court, the case could be de- 
cided against him by default.^ It is probable from all this 
that not much heed was paid to the rule laid down by Brac- 
ton to the effect that a witness suspected of being a hired 
champion was not allowed to proceed to the combat, but was 
tried by a jury for the attempt, and if convicted suffered the 
loss of a hand and a foot.^ 

Looking on the profession of a champion in this light, as 
that of a false witness, we can understand the heavy penal- 

' Etab. de Normandie, p. 21, (Marnier.) 

2 Assises d'Antioche, Haute Cour, eh, ix, xi. xii.; Assises des Bour- 
geois, ch. vi. vii, 

s Assis. Hierosol. Bassa Corte, cap. ccxxxviii. (Canciani, II. 534.) — ■ 
Constit. Sicular. Lib. ii. Tit. xxxvii. ^ 2. 

^ Home's Myrror of Justice, cap. iii. g 23. 

5 Ibid. cap. iv. § 11. 

6 Lib. III. Tract. 11. c. xxxii. § 7. 



WITNESSES AS CHAMPIONS. 1 63 

ties to which he was subjected in case of defeat, a severity 
which would otherwise appear to be a purposeless expression 
of the savage barbarity of the times. Thus, in the Norman 
coutumier above referred to, in civil suits as to disputed 
landed possessions, the champion swearing to the truth of 
his principal's claim was, if defeated, visited with a heavy 
fine and was declared infamous, being thenceforth incapable 
of appearing in court either as plaintiff or as witness, while 
the penalty of the principal was merely the loss of the pro- 
perty in dispute;^ and a similar principle was recognized in 
the English law of the period. "-^ In criminal cases, from a 
very early period, while the principal perhaps escaped with 
fine or imprisonment, the hired ruffian was hanged, or at 
best lost a hand or foot, the immemorial punishment for per- 
jury f while the laws of the Kingdom of Jerusalem prescribe 
that in combats between champions, the defeated one shall 
be promptly hanged, whether dead or alive.* The Assises 
d'Antioche are somewhat more reasonable, for they provide 
merely that the vanquished champion and his principal shall 
suffer the same penalty, whether simply a forfeiture of civil 
rights in civil cases, or hanging as in accusations of homicide 
or other serious crime. ^ In later times, when the origin of 

1 Cod. Leg. Norman. P. ii. cap. Ixiv. ^ 18. (Ludewig VII. 417.) 

2 Among the crimes entailing infamy is enumerated that of " ceux qui 
combatent mortelment pur loyer qui sont vanquish en combate joyne per 
jugement." — Home's Myrror of Justice, cap. iv. sect. 13. 

3 Et campioni qui victus fuerit, propter perjuriam quod ante pugnam 
commisit, dextra manus amputetur. — (Capit. Ludov. Pii ann. 819, ^ x.) — 
Victus vero in duello centum solidos et obolum reddere tenebitur. Pugil 
vero conductitius, si victus fuerit, pugno vel pede privabitur. — (Charta 
ann. 1203 — Du Cange.) — Also Beaumanoir, Cout. du Beauv., cap. Ixvii. 
^ 10. (Du Cange seems to me to have misinterpreted this passage.) — See 
also Monteil's admirable " Histoire des Fran9ais des divers Etats," XVe 
Siecle, Hist. xiii. 

4 Assis. Hierosol. Bassa Corte, cap. ccxxxviii. Alta Corte, cap. cv. 
(Canciani II. 534; V. 208.) 

5 Assises d'Antioche, Haute Cour, ch. xi. ; Assises des Bourgeois, ch. 
vi. vii. 



164 THE WAGER OF BATTLE. 

the champion's office had been lost sight of, and he was 
everywhere recognized as simply a bravo who sold his skill 
and courage to the highest bidder, a more practical reason 
was found for maintaining this severity — the more necessary, 
because the principal was bound by law to pay his champion, 
even when defeated, the full sum agreed upon as the price of 
his services in both swearing and fighting.^ Beaumanoir 
thus defends it on the ground of the liability of champions to 
be bought over by the adverse party, which rendered the 
gentle stimulus of prospective mutilation necessary to prevent 
them from betraying their employers;^ and it is probably 
owing to this that the full severity of the punishment is shown 
to be still in existence by a charter of so late a date as 1372, 
when the use of the judicial duel had fully entered on its 
decline.^ In the same spirit, the Emperor Frederic II. pro- 
hibited champions from bargaining with each other not to 
use teeth and hands. He commanded them to inflict all the 
injury possible on their adversaries, and decreed that they 
should, in case of defeat, share the punishment incurred by 
the principal, if the judge of the combat should consider 
that through cowardice or treachery they had not conducted 
the duel with proper energy and perseverance.* 

With such risks to be encountered, it is no wonder that the 
trade of the champion offered few attractions to honest men, 
who could keep body and soul together in any other way. 
In primitive times, the solidarity of the family no doubt 
caused the champion in most cases to be drawn from among 
the kindred ; at a later period he might generally be pro- 
cured from among the freedmen or clients of the principal, 

' Cod. Leg. Norman. P. ii. cap. Ixiv. | 19. (Ludewig VII. 416.) 

2 Et li campions vaincus a le poing cope ; car se n'estoit por le mehaing 
qu'il emporte, aucuns, par barat, se porroit faindre par loier etse clameroit 
vaincus, par quoi ses mestres emporteroit le damace et le vilonie, et cil 
emporteroit I'argent; et por ce est bons Ii jugemens du mehaing. — (Cout. 
du Beauv., cap. Ixi. | 14.) 

8 Isambert, Anciennes Lois Fran9aises V. 387. 

4 Constit. Sicular. Lib. ii. Tit. xxxvii. | 3. 



I 



PUNISHMENT OF CHAMPIONS. 1 65 

and an expression in the Lombard law justifies the assump- 
tion that this was habitual, among that race at least/ In the 
palmy days of chivalry, it was perhaps not uncommon for 
the generous knight to throw himself boldly into the lists in 
defence of persecuted and friendless innocence, as he was 
bound to do by the tenor of his oath of knighthood.^ Even 
as late as the fifteenth century, indeed, in a collection of 
Welsh laws, among the modes by which a stranger acquired 
the rights of kindred is enumerated the act of voluntarily 
undergoing the duel in the place of a principal unable or 
unwilling to appear for himself.^ A vast proportion of 
pleaders, however, would necessarily be destitute of these 
chances to avoid the personal appearance in the arena for 
which they might be unfitted or disinclined, and thus there 
gradually arose the regular profession of the paid gladiator. 
Reckless desperadoes, skilled at quarter-staff, or those whose 
familiarity with sword and dagger, gained by a life spent in 
ceaseless brawls, gave them confidence in their own ability, 
might undertake it as an occupation which exposed them to 
little risk beyond what they habitually incurred, and of such 
was the profession generally composed. This evil must have 
made itself apparent early, for we find Charlemagne endeav- 
oring to oppose it by decreeing that no robber should be 
allowed to appear in the lists as a champion, and the order 
needed to be frequently repeated.* 

• Et post illam inquisitionem, tradat manum ipse camphio in manu 
parentis aut conliberti sui ante judicem. — L. Longobard. Lib. ii. Tit. Iv. 

2 Thus the oath administered by the papal legate to William of Holland, 
on his receiving knighthood previous to his corunation as King of the Ro- 
mans in 1247, contains the clause "pro liberatione cujuslibet innocentis 
duellum inire." — Goldast. Constit. Imp. T. III. p. 400. 

3 Anomalous Laws, Book x. chap, ii, | 9. (Owen, II. 315.) The posi- 
tion thus acquired was that of brother or nephew in sharing and paying 
wer-gild. 

^ Ut nemo furem camphium de mancipiis aut de qualibet causa recipere 
praesumat, sicut ssepius dominus imperator commendavit. — Cap it. Carol. 
Mag. ex L. Longobard. cap. xxxv. (Baluze.) 



l66 THE WAGER OF BATTLE. 

When the Roman law commenced to exercise its powerful 
influence in moulding the feudal customs into a regular body 
of procedure, and admiring jurists lost no opportunity of 
making use of the newly-discovered treasures of legal lore, 
whether applicable or not, it is easy to understand that the 
contempt and the civil disabilities lavished by the Imperial 
jurisprudence on the gladiator of antiquity came to be trans- 
ferred to the mediaeval champion ; although the latter, by 
the theory of the law, stood forth to defend the innocent, 
while the former ignobly exposed his life for the gratification 
of an imbruted populace. This curious legacy of shame is 
clearly traceable in Pierre de Fontaines. To be a gladiator 
or an actor was, by the Roman law, a competent' cause for 
disinheritance.^ One of the texts prescribing it is translated 
bodily by de Fontaines, the *'arenarius" of the Roman be- 
becoming the ''champions" of the Frenchman;^ and in 
another similar transcription from the Digest, the ''athleta" 
of the original is transformed into a "champion."^ By the 
thirteenth century, the occupation of champion had thus 
become infamous. Its professors were classed with the vilest 
criminals, and with the unhappy females who exposed their 
charms for sale, as the champion did his skill and courage.* 
They were held incapable of appearing as witnesses, and the 
extraordinary anomaly was exhibited of seeking to learn the 
truth in affairs of the highest moment by a solemn appeal to 
God, through the instrumentality of those who were already 

' Novel, cxv. cap, iii. g lo — more fully set forth in Lib. ill. Cod. Tit. 
xxvii. 1. 1 1. 

2 Conseil. chap, xxxiii. tit. 32. 

3 Ibid. chap. xv. tit. 2,^, which is a translation of Lib. iv. Dig. Tit. ii. 
1. 23, I 2. 

4 Percutiat si quis hominem infamem, hoc est lusorem vel pugilem, aut 
muHerem publicam, &c,— Sachsische Weichbild Art. cxxix. ** Plusieurs 
larrons, ravisseurs de femmes, violleurs d'eglises, batteurs a loyer," etc. — 
Ordonn. de Charles VIL ann. 1447, also Ancienaes Coutumes de Bre- 
tagne. (Monteil, ubi sup.) 



DEGRADATION OF CHAMPIONS. 167 

considered as convicts of the worst kind, or who, by the 
very act, were branded with infamy if successful in justifying 
innocence, and if defeated were mutilated or hanged.^ By 
the codes in force throughout Germany in the thirteenth and 
fourteenth centuries, they were not only, in common with 
bastards, actors, and jugglers, deprived of all legal privileges, 
such as succeeding to property, bearing witness, &c., but 
even their children were visited with the same disabilities. 2 
The utter contempt in which they were held was moreover 
quaintly symbolized in the same codes by the provisions of a 
tariff of damages to be assessed for blows and other personal 
injuries. A graduated list of fines is given for such insults 
offered to nobles, merchants, peasants, &c., in compensation 
of their wounded honor ; below the serf come the mounte- 
bank and juggler, who could only cuff the assailant's shadow 
projected on a wall ; and last of all are rated the champion 
and his children, whose only redress was a glance of sun- 
shine cast upon them by the offender from a duelling shield. 
Deemed by law incapable of receiving an insult, the satisfac- 
tion awarded was as illusory as the honor to be repaired.^ 
That this poetical justice was long in vogue is proved by the 

1 Johen de Beaumont dit que chanpions loiez, prov6 de tel chose, ne 
puet home apelier a gage de bataille an nul quas, si n'est por chanpion 
loiez por sa deffansse ; car la poine de sa mauvese vie le doit bien en ce 
punir. — Livres de Jostice et de Plet, Liv, xix. Tit. ii. § 4. 

2 Campiones et eorum liberi (ita nati) et omnes qui illegitime nati sunt, 
et omnes qui furti aut pleni latrocinii nomine satisfecere, aut fustigationem 
sustinuere, hi omnes juris beneficiis carent. — Jur, Provin. Alaman. cap. 
xxxvi. § 2. (Ed. Schilter.) — Jur. Provin. Saxon. Lib. ill. c. xlv. 

3 Campionibus et ipsorum liberis emendae loco datur fulgur ex clypeo 
nitido, qui soli obvertitur, ortum; hoc is qui eis satisfactionem debet loco 
emendas praestare tenetur. — (Jur. Prov. Alaman. cap. cccv. ^ 15. — Jur. 
Provin. Saxon. Lib. ill. art. xlv.) In the French version of the Speculum 
Suevicum, these emblematic measures of damage are followed by the re- 
mark " cestes emandes furent estrablies an la vieillie loy per les roys" (P. 
II. c. Ixxxvi.), which would appear to show that they were disused in the 
territories for which the translation was made. 



l68 THE WAGER OF BATTLE. 

commentary upon it in the Richstich Landrecht, of which 
the date is shown to be not earlier than the close of the four- 
teenth century, by an allusion in the same chapter to acci- 
dental deaths arising from the use of firearms.^ 

The Italians, however, took a more sensible and practical 
view of the matter. Accepting as a necessity the existence 
of champions as a class, they were disposed rather to elevate 
than to degrade the profession. In the Veronese code of 
1228, they appear as an established institution, consisting 
of individuals selected and appointed by the magistrates, who 
did not allow them to receive more than one hundred sous 
for the performance of their office.^ 

It is evident that the evils attendant upon the employment 
of champions were generally recognized, and it is not sin- 
gular that efforts were occasionally made to abrogate or limit 
the practice. Otho II., whose laws did so much to give 
respectability to the duel, decreed that champions should be 
permitted only to counts, ecclesiastics, women, boys, old 
men, and cripples.^ That this rule was strictly enforced in 
some places we may infer from the pleadings of a case oc- 
curring in loio before the Bishop of Aretino, concerning a 
disputed property, wherein a crippled right hand is alleged 
as the reason for allowing a champion to one of the parties.* 
In other parts of Italy, however, the regulation must have 
been speedily disregarded, for about the same time Henry 
II. found it necessary to promulgate a law forbidding the 
employment of substitutes to able-bodied defendants in cases 
of parricide or of aggravated murder;^ and when, two hun- 
dred years later, Frederic II. almost abolished the judicial 
combat in his Neapolitan dominions, we may fairly presume 
from one of his remarks that champions were universally 

• Richstich Landrecht, Lib. II. cap. xxv. 

2 Lib. Juris Civilis Veron. cap. 125, 126. (Veronse, 1728, p. 95.) 

3 L. Longobard. Lib. ii. Tit. Iv. g| 38, 40. 

* Muratori, Antiq. Ital. Dissert. 39. 

5 L. Longobard. Lib. i. Tit. ix. ^ 37 ; Tit. x. | 4. 



RESTRICTIONS ON USE OF CHAMPIONS. 169 

employed.^ Indeed, he made provision for supplying them 
at the public expense to widows, orphans, and paupers who 
might be unable to secure for themselves such assistance. "'^ 
In Germany, early in the eleventh century, it would seem 
that champions were a matter of course, from the expressions 
made use of in describing the execution of a number of rob- 
bers convicted in this manner at Merseburg in 1017.^ At a 
later period, it seems probable, from a comparison of two 
chapters of the Suabian laws, that efforts were made to 
prevent the hiring of professional gladiators,* but that they 
were attended with little success may be inferred from the 
disabilities which, as we have already seen, were so copiously 
showered on the class by the same laws. 

The English law manifests considerable variation at dif- 
ferent periods with respect to this point. In 1150, Henry 
II. strictly prohibited the wager of battle with hired cham- 
pions in his ISorman territories;^ and we learn from Glanville 
that a champion suspected of serving for money might be 
objected to by the opposite party, whence arose a secondary 
combat to determine his fitness for the primary one.^ It is 
evident from this that mercenary champions were not recog- 
nized as legal in England, a principle likewise deducible 
from an expression of Bracton's in the succeeding century.^ 
This, however, was probably little regarded in practice. 
There exists a charter of Bracton's date, by which John 

' Vix enim aut nunquam duo pugiles inveniri poterunt sic aequales, etc. 
— Constit. Sicular. Lib. 11. Tit. xxxiii. 

2 Ibid. Lib. i. Tit. xxxiii. 

3 Ibi tunc multi latrones a gladiatoribus singulari certamine devicti, sus- 
pendio perierunt. — Dithmari, Chron. Lib. vil. 

•* Jur. Provin. Alaman. cap. xxxvi. g 2; cap. Ix. g I. 

5 Concil. Eccles. Rotomag. p. 128. (Du Cange.) 

^ De Leg. Anglise Lib. 11. cap. iii. 

7 Ita posset quilibet in tali facto alium appellare per campionem con- 
ductivum, quod non est sustinendum. — Bracton. Lib. iij. Tract, ii. cap. 
18, § 4. 

15 



lyo THE WAGER OF BATTLE. 

*' quondam porcarius de Coldingham" grants to the Priory 
of Coldingham a tract of land which he had received from 
Adam de Riston in payment for victoriously fighting a duel 
for him.^ When John thus proclaimed himself to be a hired 
champion there could have been little danger that legal disa- 
bilities would be visited either on him or his principal. The 
custom gradually became general, for eventually, in civil 
cases, both parties were compelled by law to employ cham- 
pions, which presupposes, as a matter of course, that in a 
great majority of instances, the substitutes must have been 
hired. ^ In-criminal cases, however, the rule was generally 
reversed ; in felonies, the defendant was obliged to appear 
personally, while in cases of less moment he was at liberty 
to put forward a witness as champion f and when the ap- 
pellant, from sex or other disability, or the defendant from 
age, was unable to undergo the combat personally, it was 
forbidden, and the case was decided by a jury.* By the 
Scottish law of the twelfth century, it is evident that cham-: 
pions were not allowed in any case, since those disabled by 
age or wounds were forced to undergo the ordeal in order 
to escape the duel.^ This strictness became relaxed in time, 
though the practice of employing champions seems never to 

' This charter, which has recently been found among the records of 
Durham Cathedral, is printed in the London Athenceum of November loth, 
1866. It is not dated, but the names of the subscribing witnesses show 
that it must have been executed about the year 1260. 

2 Lord Eldon, in his speech advocating the abolition of trial by battle, 
in 181 9, stated, " In these the parties were not suffered to fight in propria 
persona — they were compelled to confide their interests to champions, on 
the principle that if one of the parties were slain, the suit would abate." — 
Campbell's Lives of the Chancellors, VII. 279. 

3 Pur felony ne poit nul combattre pur autre; en personal actions ne- 
quidant venials, list aux actors de faire les battailes per lour corps ou per 
loyal tesmoigne come en droit reals sont les combats. — Home's Myrror of 
Justice, cap. iii. sect. 23. . 

4 Bracton. Lib. in. Tract, ii. cap. 21, \\ 11, 12. — Ibid. cap. 24. 

5 Regiam Majestatem Lib. iv. cap. iii. 



RESTRICTIONS ON USE OF CHAMPIONS. I71 

have received much encouragement. By a law of David 11. , 
about the year 1350, it appears that a noble had the privi- 
lege of putting forward a substitute ; but if a peasant chal- 
lenged a noble, he was obliged to appear personally, unless 
his lord undertook the quarrel for him and presented the 
champion as from himself/ 

The tendency exhibited by the English law in distin- 
guishing between civil and criminal cases is also manifested 
elsewhere. Thus, in France and the Frankish kingdoms of 
the East, there were limitations placed by law on the em- 
ployment of champions in prosecutions for crime, ^ while in 
civil actions there appear to have been, at least in France, 
no restrictions whatever.^ This distinction between civil 
and criminal practice is very clearly enunciated by Pierre de 
Fontaines, who states that in appeal of judgment the appel- 
lant in criminal cases is bound to show satisfactory cause for 
employing a champion, while in civil affairs the right to do 
so requires no argument.* In practice, however, it is doubt- 
ful whether there was any effectual bar to their use in any 
case, for the Monk of St. Denis, in praising St. Louis for 
suppressing the battle-trial, gives as one of the benefits of its 
abrogation, the removal of the abuse by which a rich man 
could buy up all the champions of the vicinity, so that a 
poorer antagonist had no resource to avoid the loss of life 
or heritage.^ This hiring of champions, moreover, was 
legally recognized as a necessity attendant upon the privilege 

' Statut. David. II. cap. xxvili. By the Burgher laws of Scotland, a 
man who was incapacitated by reason of age from appearing in the field, 
was allowed to defend himself with twelve conjurators. — L. Burgor. cap, 
xxiv. II 1,2. ' ^ 

2 Assises de Jerusalem, Baisse Court, cap. 145, 146. — Beaumanoir, cap. 
Ixi. I 6; cap. Ixii. | 4. 

3 Beaumanoir, cap. Ixi. | 14. 

* Conseil, chap. xxii. Tit. xiii. 

5 Grandes Chroniques T. IV. p. 427. 



172 THE WAGER OF BATTLE. 

of employing tbem.^ High rank, or a marked difference 
between the station of parties to an action, was also admitted 
as justifying the superior in putting forward a champion in 
his place. ^ Local variations, however, are observable in the 
customs regulating these matters. Thus the municipal laws 
of Rheims, in the fourteenth century, not only restrict the 
admission of champions in criminal matters to cases in which 
age or physical disability may incapacitate the principals 
from personally taking part in the combat, but also require 
the accused to swear that the impediment has supervened 
since the date of the alleged offence; and even this was of 
no avail if the prosecutor had included in his appeal of battle 
an assertion that such disability had existed at the time spe- 
cified/'' Witnesses obliged to support their testimony by the 
duel were not only subject to the same restrictions, but in 
substituting a hired gladiator were obliged to swear that they 
had vainly sought among their friends for some one to volun- 
tarily assume the office."^ The whole tenor of these provi- 
sions, indeed, manifests a decided intention to surround the 
employment of champions with every practicable impedi- 
ment. In Beam, again, the appellant in cases of treason had 
a right to decide whether the defendant should be allowed to 
put forward a substitute, and from the expressions in the text 
it may be inferred that in the selection of champions there 
was an endeavor to secure equality of age, size, and strength.^ 
This equalization of chances was thoroughly carried out in 

' II est usage que se auciin demende la cort de bataille qui est juege 
par champions loees, il la tendra le jor niaimes, et si ele est par le cors 
des quereleors il metra jor avenant a la tenir autre que celui. — Coutumes 
d'Anjou, XIII. e Si^cle,- 1 74. 

2 Kar haute persone doit bien metre por lui, a deffendre soi, home, 
honeste persone, se I'an I'apele, ou s'il apele autre. — Livres de Jostice et 
de Plet, liv. II. Tit. xviii. 

3 Lib. Pract. de Consuet. Remans. ^ 40. (Archives Legisl. de Reims, 
Pt. I. p. 40.) 

* Ibid. § 14, p. 37. 

5 For de Morlaas, Ruhr. liii. art. 188. 



LIMITATIONS ON USE OF CHAMPIONS. I 73 

the Veronese code of 1228, where, as has been seen, the 
champions were a recognized body, regulated and controlled 
by the state. No one could engage a champion before a 
duel had been judicially decreed. Then the magistrate was 
bound to choose gladiators of equal prowess, and the choice 
between them was given to the defendant : an arrangement 
which rendered the mutilation inflicted on the vanquished 
combatant only justifiable on the score of suspected treach- 
ery.^ In Bigorre, the only restriction seems to have been 
that champions should be natives and not foreigners.^ By 
the Spanish law of the thirteenth century, the employment 
of champions was so restricted as to show an evident desire 
on the part of the legislator to discourage it as far as possi- 
ble. The defendant had thfe right to send a substitute into 
the field, but the appellant could do so only by consent of 
his adversary. The champion was required to be of birth 
equal to his principal, which rendered the hiring of cham- 
pions almost impossible, and not superior to him in force 
and vigor. Women and minors appeared by their next of 
kin, and ecclesiastics by their advocates.^ In Russia, until 
the sixteenth century, champions were never employed, con- 
testants being always obliged to appear in person. In 1550, 
the code known as the Sudebtnick at length permitted the 
employment of champions in certain cases.* 

There were two classes of pleaders, however, with whom 
the hiring of champions was a necessity, and who could not 
be bound by the limitations imposed on ordinary litigants. 
While the sexagenary, the infant, and the crippled might 

' L, Jur. Civilis Veronge cap. 125, 126 (p. 95). 

'^ Pugiles in Bigorra non nisi indigenae recipiantur. (Lagreze, Hist, du 
Droit dans les Pyrenees, p. 251.) By the same code, the tariff of pay- 
ment to the champion was 20 sous, with 12 for his shield and 6 for train- 
ing — "pro prseparatione," 

3 Las Siete Partidas, Pt. VII. Tit. iv. 1. 3. 

* Du Boys, Droit Criminel des Peuples Modernes, I. 611-13. 

15* 



174 THEWAGEROFBATTLE. 

possibly find a representative among their kindred, and while 
the woman might appear by her husband or next of kin, the 
ecclesiastical foundations and chartered towns had no such 
resource. Thus, in a suit for taxes, in 1164, before the 
court of Verona, Bonuszeno of Soavo proved that the village 
of Soavo had exempted his father Petrobatalla from all local 
imposts for having served as champion in a duel between it 
and a neighboring community, and his claim to the reversion 
of the exemption was allowed.^ So a charter of 1104'relates 
how the monks of Noailles were harassed by the seizure of 
some mills belonging to their abbey, claimed by an official 
of William Duke of Aquitaine, until at length the duke 
agreed to allow the matter to be decided by the duel, when 
the champion of the church was victorious and the disputed 
property was confirmed to the abbey. ^ At length the fre- 
quent necessity for this species of service led to the employ- 
ment of regularly appointed champions, who fought the 
battles of their principals for an annual stipend, or for some 
other advantages bestowed in payment. Du Cange, for in- 
stance, gives the text of an agreement by which one Geoffry 
Blondel, in 1256, bound himself to the town of Beauvais as 
its champion for a yearly salary of twenty sous Parisis, with 
extra gratifications of ten livres Tournois every time that he 
appeared in arms to defend its cause, fifty livres if blows 
were exchanged, and a hundred livres if the combat were 
carried to a triumphant issue. It is a little singular that 
Beaumanoir, in digesting the customs of Beauvais but a few 
years later, speaks of this practice as an ancient and obsolete 
one, of which he had only heard through tradition.'^ That 
it continued to be in vogue until long after, is shown by 

' Campagnola, Lib. Juris Civ. Veronse. (Veronae, 1728, p. xviii.) 

2 Polyptichum Irminonis, App. No. ^^. (Paris, 1836, p. 372.) 

^ Une malvese coustume souloit courre ancieinment, si comme nos 

avons entendu des seigneurs de lois. — Cout. du Beauvoisis, cap. xxxviii. 

§15. 



CHAMPIONS FOR COMMUNITIES. 175 

Monteil, who alludes to several documents of the kind, 
bearing date as late as the fifteenth century.^ 

The champions of the church occupied a higher position, 
and were bound to defend the interests of their clients in the 
field as well as in the court and in the lists; they also led 
the armed retainers of the church when summoned by the 
suzerain to national war. The office was honorable and 
lucrative, and was eagerly sought by gentlemen of station, 
who turned to account the opportunities of aggrandizement 
which it afforded ; and many a noble family traced its pros- 
perity to the increase of ancestral property thus obtained, 
directly or indirectly, by espousing the cause of fat abbeys 
and wealthy bishoprics, as when, in the ninth century, the 
Abbot of Figeac, near Cahors, bestowed on a neighboring 
lord sixty churches and five hundred mansi on condition of 
his fighting the battles of the abbey. "^ The influence of feu- 
dalism early made itself felt, and the office of Vidame or 
Aiwue became generally hereditary, after which its possessors, 
for the most part, rendered themselves independent of their 
benefactors, their exactions and spoliations becoming a fa- 
vorite theme of objurgation among churchmen who regarded 
them as the worst enemies of the foundations which they 
had sworn to protect.^ In many instances the position was 
a consideration obtained for donations bestowed upon 
churches, so that in some countries, and particularly in 
England, the title of advocaiiis became gradually recognized 
as synonymous with patron. Thus, one of the worst abuses 
of the Anglican Church is derived from this source, and the 

' Hist, des Fran§ais, XV^ Siecle, Hist. xiii. — The tariff of rewards paid 
to Blondel, and Beaumanoir's argument in favor of mutilating a defeated 
champion, offer a strong practical commentary on the fundamental princi- 
ple upon which the whole system of appeals to the judgment of God was 
based — that success was an evidence of right, 

2 Hist. Monast. Figeacens. — (Baluz. et Mansj IV, p, i.) 

3 Abbonis Floriac. Collect. Canon, can. ii, — fjistoy. T^eyireas. (D'Ache- 
ry Spicileg. II. 223). — Gerohi Reichersperg, de ^dificio Dei cap, vi. 



176 THE WAGER OF BATTLE. 

forgotten wrongs of the Middle Ages are perpetuated, etynio- 
logically at least, in the advowson which renders the cure of 
souls too often a matter of bargain and sale. 

DECLINE OF THE JUDICIAL DUEL. 

So many influences were at work in favor of the judicial 
duel, and it was so thoroughly engrafted in the convictions 
and prejudices of Europe that centuries were requisite for 
its extirpation. Curiously enough, the earliest decisive 
action against it took place in Iceland, where it was formally 
interdicted as a judicial proceeding in loii;^ and though 
the assumption that this was owing to the introduction of 
Christianity has been disproved, still, the fact that both 
events were contemporaneous allows us to conclude that 
some influence may have been exercised by even so imper- 
fect a religion as that taught to the new converts, though the 
immediate cause was a holmgang between two skalds of dis- 
tinction, Gunnlaug Ormstunga and Skald-Rafn.^ Norway 
was not long in following the example, for about the same 
period the Jarls Erik and Svenn Hakonsen abolished the 
holmgang, while paganism was as yet widely prevalent.^ 
Denmark was almost equally prompt : indeed Saxo Gram- 
maticus in one passage attributes to it the priority, asserting 
that when Poppo, in 965, converted Harold Blaatand by the 

• Schlegel Comment, ad Gragas, p, xxii. — Dasent, in his Icelandic 
Chronology (Burnt Njal I. cciii.) places this in 1006, and Keyser (Reli- 
gion of the Northmen, Pennock's Trans, p. 258) in 1000. 

2 The kind of Christianity introduced may be estimated by the charac- 
ter of the Apostle of Iceland. Deacon Thangbrand was the son of Willi- 
bald Count of Saxony, and even after he had taken orders continued to 
ply his old vocation of viking or sea-robbing. To get rid of him and to 
punish him, King Olaf Tryggvesson of Norway imposed upon him the 
task of converting Iceland, which he accomplished with the sword in one 
hand and the Bible in the other. — See Dasent, Burnt Njal, II. 361, — Olaf 
Tryggvesson's Saga c. Ixxx. (Laing's Heimskringla, I. 441.) 

3 Keyser, op. cit p. 258. 



COMMENCEMENT OF ITS DECLINE. 177 

ordeal of red-hot iron, it produced so powerful an effect as 
to induce the substitution of that mode of trial for the pre- 
viously existing wager of battle.^ Yet it evidently was not 
abolished for a century later, for when Harold the Simple, 
son of Sven Estrith, ascended the throne in 1074, among the 
legal innovations which he introduced was the substitution 
of the purgatorial oath for all other forms of defence, which, 
as Saxo specifically states, put an end to the wager of battle, 
and opened the door to great abuses.^ 

Fiercer tribes than these in Europe there were none, and 
their abrogation of the battle trial at this early age is an 
inexplicable anomaly. It was an exceptional movement, 
however, without results beyond their own narrow boun- 
daries. Other causes had to work slowly and painfully for 
ages before man could throw off the bonds of ancestral pre- 
judice. One of the most powerful of these causes was the 
gradual rise of the Tiers-Etat to consideration and importance. 
The sturdy bourgeois, though ready enough with morion and 
pike to defend their privileges, were usually addicted to a 
more peaceful mode of settling private quarrels. Devoted 
to the arts of peace, seeing their interest in the pursuits of 
industry and commerce, enjoying the advantage of settled 
and permanent tribunals, and exposed to all the humanizing 
and civilizing influences of close association in communities, 
they speedily acquired ideas of progress very different from 
those of the savage feudal nobles living isolated in their 
fastnesses, or of the wretched serfs who crouched for protec- 
tion around the castles of their masters. Accordingly, the 
desire to escape from the necessity of purgation by battle 
is almost coeval with the founding of the first communes. 
The earliest instance of this tendency that I have met with 
is contained in the charter granted to Pisa by the Emperor 
Henry IV. in 1081, by which he agrees that any accusations 
which he may bring against citizens can be tried without 

' Saxon. Grammat. Hist. Dan. Lib. x. 2 ibid. Lib. xi. 



178 THE WAGER OF BATTLE. 

battle by the oaths of twelve compurgators, except when the 
penalties of death or mutilation are involved; and in ques- 
tions concerning land, the duel is forbidden when competent 
testimony can be procured.^ Limited as these concessions 
may seem, they were an immense innovation on the preju- 
dices of the age, and are important as affording the earliest 
indication of the direction which the new civilization was 
assuming. Not long after, about the year T105, the citizens 
of Amiens received a charter from their bishop, St. Godfrey, 
in which the duel is subjected to some restriction — not 
enough in itself, perhaps, to effect much reform, yet clearly 
showing the tendency which existed. According to the 
terms of this charter no duel could be decreed concerning 
any agreement entered into before two or three magistrates 
if they could bear witness to its terms. ^ Perhaps the earliest 
instance of absolute freedom from the judicial combat occurs 
in a charter granted to the town of Ypres, in 11 16 by Bald- 
win VII. of Flanders, when he substituted the oath with four 
conjurators in all cases where the duel or the ordeal was 
previously in use.^ This was followed by a similar grant to 
the inhabitants of Bari by Roger, King of Naples, in 1132.* 
Curiously enough, almost contemporary with this is a simi- 
lar exemption bestowed on the rude mountaineers of the 
Pyrenees. Centulla I. of Bigorre, who died in 1138, in the 
Privileges of Lourdes, authorizes the inhabitants to prosecute 
their claims without the duel;^ and his desire to discourage 
the custom is further shown by a clause permitting the 

• Lunig Cod. Diplom. Ital. I, 2455. — The liberal terms of this charter 
show the enlightenment of the Emperor, and explain the fidelity mani- 
fested for him by the iinperial cities in his desperate struggles with his 
rebellious nobles and an implacable papacy. 

2 Chart. Commun. Ambianens. c. 44. (Migne's Patrolog. T. 162, p. 

750- ) 

3 The charter is given by Proost, op. cit. p. 96. 

* Ferrum, cacavum, pugnam, aquam, vobis non judicabit vel judicari 
faciet. (Muratori, Antiq. Ital. Dissert. 38.) 

5 Privileges de Lourdes, cap. ii. (Lagreze, op. cit. p. 482.) 



OPPOSITION OF THE COMMUNES. 1 79 

pleader who has gaged his battle to withdraw on payment of 
a fine of only five sous to the seigneur, in addition to what 
the authorities of the town may levy.^ Still more decided 
was a provision of the laws of Soest in Westphalia, somewhat 
earlier than this, by which the citizens were absolutely pro- 
hibited from appealing each other in battle;^ and this is also 
to be found in a charter granted to the town of Tournay by 
Philip Augustus in 1187.^ In the laws of Ghent, granted by 
Philip of Alsace in 11 78, there is no allusion to any species 
of ordeal, and all proceedings seem to be based on the ordi- 
nary processes of law, while in the charter of Nieuport, be- 
stowed by the same prince in 11 63, although the ordeal of 
red-hot iron and compurgatorial oaths are freely alluded to 
as means of rebutting accusations, there is no reference 
whatever to the battle trial, showing that it must then have 
been no longer in use.* Louis VIII. in the charter of Cres- 
py, granted in 1223, promised that neither himself nor his 
officials should in future have the right to demand the wager 
of battle from its inhabitants ;^ and shortly after, the laws of 
Arques, conceded by the abbey of St. Bertin in 1231, pro- 
vided that the duel could only be decreed between two citi- 
zens of that commune when both parties should assent to it.® 
In the same spirit the laws of Riom, granted by Alphonse de 
Poitiers, theson of St.Louis, in 1 2 7o,declared that no inhabitant 
of the town should be forced to submit to the wager of battle.^ 

' Privileges de Lourdes, cap. xiii. (Lagrfeze p. 484.) These privi- 
leges were confirmed at various epochs, until 1407. 

2 Statuta Susatensia, No. 41 (Hseberlin Analect. Med. ^vi. p. 513). 
This is retained in the subsequent recension of the law, in the thirteenth 
century. (Op. cit, p. 526,) 

3 Consuetud. Tornacens. ann. 1187, | xxi. (D'Achery Spicileg. III. 
552.) 

4 Oudegherst, Annales de Flandre ed. Lesbroussart. T. I. pp. 426 sqq. ; 
T. II. not. ad fin. 

5 Statuta Commun. apud Crispiacum (D'Achery Spicileg. III. 595). 
s Legg. Villse de Arkes ^ xxxi. (Ibid. p. 608). 

^ Libertates Villae Ricomag. | 6 (Ibid. p. 671). 



l8o THE WAGER OF BATTLE. 

In the customs of Maubourguet, granted in 1309, by Bernard 
VI. of Armagnac, privileges similar to those of Lourdes, al- 
luded to above, were included, rendering the duel a purely 
voluntary matter.^ Even in Scotland, partial exemptions of the 
same kind in favor of towns are found as early as the twelfth 
century. A stranger could not force a burgher to fight, ex- 
cept on an accusation of treachery or theft, while, if a 
burgher desired to compel a stranger to the duel, he was 
obliged to go beyond the confines of the town. A special 
privilege was granted to the royal burghs, for their citizens 
could not be challenged by the burghers of nobles or pre- 
lates, while they had the right to offer battle to the latter.^ 
Much more efficient was the clause of the third Keure of 
Bruges, granted in 1304 by Philip son of Count Guy of 
Flanders, which strictly prohibited the duel. Any one who 
gave or received a wager of battle was fined sixty sols, one- 
half for the benefit of the town, and the other for the count. ^ 
The special influence exercised by the practical spirit of 
trade in rendering the duel obsolete is well illustrated by 
the privilege granted, in 1127, by William Clito, to the mer- 
chants of St. Omer, declaring that they should be free from 
all appeals to single combat in all the markets of Flanders.* 
In a similar spirit, when Frederic Barbarossa, in 11 73, was 
desirous of attracting to the markets of Aix-la-Chapelle and 
Duisbourg the traders of Flanders, in the code which he 
established for the protection of such as might come, he spe- 

' E sobre ayso que dam e autreyam als borges de la vielle de Maubour- 
guet que totz los embars pusquen provar sens batalhe etc. — Coutumes de 
Maubourguet, cap. v. That this, however, was not expected to do away 
entirely with the battle trial is shown by the regulation prescribed in cap. 
xxxvii. (Lagreze, op. cit. pp. 470, 474.) 

2 L. Burgorum, c. 14, 15. (Skene.) 

3 Warnkoenig, Hist, de la Flandre, IV. 129. 

■* In omni mercato Flandrise si quis clamorem adversus eos suscitaverit, 
judicium scabinorum de omni clamore sine duello subeant; ab duello vero 
ulterius liberi sint. — (Warnkonig. Hist, de la Flandre, II. 411.) 



OPPOSITION OF THE COMMERCIAL SPIRIT. l8l 

cially enacted that they should enjoy immunity from the 
duel.^ Even Russia found it advantageous to extend the 
same exemption to foreign merchants, and in the treaty 
which Mstislas Davidovich made in 1228 with the Hanse- 
town of Riga, he granted to the Germans who might seek 
his dominions immunity from liability to the red-hot iron 
ordeal and wager of battle.^ 

Germany seems to have been somewhat later than France 
or Italy in the movement, yet her burghers evidently re- 
garded it with favor. Frederic II., who recorded his disap- 
proval of the duel in his Sicilian Constitutions, was ready to 
encourage them in this tendency, and in his charters to 
Ratisbon and Vienna he authorized their citizens to decline 
the duel and clear themselves by compurgation,^ while as 
early as 12 19 he exempted the Niirnbergers from the appeal 
of battle throughout the empire.* The burgher law of 
Northern Germany alludes to the judicial combat only in 
criminal charges, such as violence, homicide, housebreaking, 
and theft ;^ and this is limited in the statutes of Eisenach, of 
T283, which provide that no duel shall be adjudged in the 
town, except in cases of homicide, and then only when the 
hand of the murdered man shall be produced in court at the 
trial.*' In 1291, Rodolph of Hapsburg issued a constitution 
declaring that the burghers of the free imperial cities should 
not be liable to the duel outside of the limits of their indi- 
vidual towns, ^ and in the Kayser-Recht this privilege is ex- 
tended by declaring the burghers exempt from all challenge 

1 Nemo niercatoi-em de Flandria duello provocabit. (Ibid. II. 426.) 

2 Traite de 1228, art. 3, Esneaux, Hist, de Russie, 11. 272. 

3 Belitz de Duellis Germanorum, p. 9. Vitembergae, 1717. 

* Constit. Frid II. de Jur. Norimb. | 4 (Goldast. Constit. Imp. I. 291). 

5 Sachsische Weichbild, Art. xxxv. Ixxii, Ixxxi.-lxxxiv. Ixxxix. xc. 
xcii. cxiv. 

6 Henke, Gesch. des Deut. Peinlichen Rechts I. 192 (Du Boys, op. cit. 
II. 590). 

7 Goldast. op. cit. I. 314. 

16 



1 82 THE WAGER OF BATTLE. 

to combat, except in a suit brought by a fellow-citizen,^ 
Notwithstanding this, special immunities continued to be 
granted, showing that these general laws were of little effect 
unless supported by the temper of the people. Thus Louis 
IV. in 1332 gave such a privilege to Dortmund, and so late 
as 1355 Charles IV. bestowed it on the citizens of Worms. ^ 

All these, however, were special privileges for a limited 
class of men, and their local regulations had no direct bear- 
ing on general legislation, except in so far as they might 
assist in softening the manners of their generation and aiding 
in the general spread of civilization. A more efficient cause 
was to be found in the opposition of the church. From 
Liutprand the Lombard to Frederic IL, a- period of five 
centuries, no secular lawgiver, south of Denmark, seems to 
have thought of abolishing the judicial combat as a measure 
of general policy, and those whose influence was largest 
were the most conspicuous in fostering it. During the 
whole of this period the church was consistently engaged in 
discrediting it, notwithstanding that the local interests or 
pride of individual prelates might lead them to defend the 
vested privileges connected with it in their jurisdictions. 

When King Gundobald gave form and shape to the battle 
ordeal in digesting the Burgundian laws, Avitus, Bishop of 
Vienne, remonstrated loudly against the practice as unjust 
and unchristian. A new controversy arose on the occasion 
of the duel between the Counts Bera and Sanila, to which 
allusion has already been made as one of the important 
events in the reign of Louis-le-Debonnaire. St. Agobard, 
Archbishop of Lyons, took advantage of the opportunity to 
address to the Emperor a treatise in which he strongly 

' Jur. Csesar P. iv. cap. i, (Senckenberg Corp. Jiir. German. I. 118.) 
This portion of the Kayser Recht is probably therefore posterior to the 
rise of the Hapsburg dynasty. 

2 Ijelitz de Duel. Gernaan. p. 11. 



OPPOSITION OF THE CHURCH. 1 83 

deprecated the settlement of judicial questions by the sword; 
and he subsequently wrote another tract against ordeals in 
general, consisting principally of scriptural texts with a run- 
ning commentary, proving the incompatibility of Christian 
doctrines with these unchristian practices.^ Some thirty-five 
years later, the Council of Valence in 855 denounced the 
wager of battle in the most decided terms, praying the Em- 
peror Lothair to abolish it throughout his dominions, and 
adopting a canon which not only excommunicated the victor 
in such contests, but refused the rights of Christian sepulture 
to the victim.^ By this time the forces of the church were 
becoming consolidated in the Papacy, and the Vicegerent of 
God was beginning to make his voice heard authoritatively 
throughout Europe. The popes accordingly were not long 
in protesting energetically against the custom. Nicholas I. 
denounced it vigorously,' and his successors constantly en- 
deavored, as we have already seen, to discredit it. In the 
latter half of the twelfth century, Peter Cantor argues that a 
champion undertaking the combat relies either on his super- 
ior strength and skill, which is manifest injustice; or on the 
justice of his cause, which is presumption; or on a special 
miracle, which is a devilish tempting of God.* Near the 
close of the same century, Celestin III. prohibited it in 
general terms, ^ and he further pronounced that champions 

' "Liber adversus Legem Gundobadi" and "Liber contra Judicium 
Dei." (Agobardi 0pp. Ed, Baluz I. 107, 301.) Both of these works dis- 
play marked ability, and a spirit of enlightened piety, mingled with fre- 
quent absurdities which show that Agobard could not in all things rise 
superior to his age. One of his favorite arguments is that the battle ordeal 
was approved by the Arian heretic Gundobald, whom he stigmatizes as 
"quidam superbus ac stultus hsereticus Gundobadus Burgundionum rex." 

2 Concil. Valentin, ann, 855 can. 12. 

3 Can. Monomachiam caus. II. q. v. 

4 Pet. Cantor. Verb. Abbrev. cap. Lxxviii. 

5 " In eo casu, vel aliis etiam, hoc non debes aliquatenus tolerare" (Can. 
I, Extra, Lib v. Tit. xxxv.). The rubric of this canon is even more 
decided. — " Duella et alioe purgationes vulgares prohibitse sunt, quia per 
eas muitoties condemnatur absolve ndus, et Deus tentari videtur." 



l84 THE WAGER OF BATTLE. 

in such contests, together with principals, were guilty of 
homicide, and liable to all the ecclesiastical penalties of that 
crime. ^ Innocent III., moreover, took care that the great 
council of Lateran in 1215 should confirm all the previous 
prohibitions of the practice.^ It was probably this papal 
influence that led Simon de Montfort, the special champion 
of the church, to limit the use of the duel in the territories 
which he won in his crusade against the Counts of Toulouse. 
In a charter given December i, 1212, he forbids its use in 
all the seignorial courts in his dominions, except in cases of 
treason, theft, robbery, and murder.* De Montfort's de- 
pendence on Rome, however, was exceptional, and Chris- 
tendom at large was not as yet prepared to appreciate the 
reformatory efforts of the popes. The refinements of the 
scholastic theology moreover found that it was less objection- 
able than the other forms of ordeal, because, as Thomas 
Aquinas remarks, the hot iron or boiling water is a direct 
tempting of God, while the duel is only a matter of chance, 
for no one expects miraculous interposition unless the cham- 
pions are very unequal in age or strength.^ Yet this was a 
subtlety too refined for the common mind, and the persist- 
ence of ecclesiastical belief in the divine interposition is 
fairly illustrated by a case, related with great triumph by 
monkish chroniclers, as late as the fourteenth century, when 
a duel was undertaken by direction of the Virgin Mary her- 
self. In 1325, according to the story, a French Jew feigned 
conversion to Christianity in order to gratify his spleen by 
mutilating the images in the churches, and at length he com- 
mitted the sacrilege of carrying off the holy wafer to aid in 
the unknown and hideous rites of his fellows. The patience 
of the Virgin being at last exhausted, she appeared in a vision 

» Can. 2, Extra, Lib. v. Tit. xv. 

2 Concil, Lateranens. IV. can. 18. 

3 Consuetud. S. Montisfortis. (Conlre le Franc-Alleu sans Tiltre, p. 
229. Paris, 1629.) 

« Sec. Sec. Q. 95 art. 8. 



INFLUENCE OF THE ROMAN LAW. 1 85 

to a certain smith, commanding him to summon the impious 
Israelite to the field. A second and a third time was the 
vision repeated without effect, till at last the smith, on enter- 
ing a church, was confronted by the Virgin in person, 
scolded for his remissness, promised an easy victory, and 
forbidden to pass the church door until his duty should be 
accomplished. He obeyed and sought the authorities. The 
duel was decreed, and the unhappy Hebrew, on being 
brought into the lists, yielded without a blow, falling on his 
knees, confessing his unpardonable sins, and crying that he 
could not resist the thoustinds of armed men who appeared 
around his adversary with threatening weapons. He was 
accordingly promptly burned, to the great satisfaction of all 
believers.^ Yet for all this, the opposition of the church, as 
authoritatively expressed by successive pontiffs, could not 
but have great influence in opening the minds of men to a 
sense of the cru'elty and injustice of the custom.^ 

But perhaps the most powerful cause at work was the 
revival of the Roman jurisprudence, which in the thirteenth 
century commenced to undermine all the institutions of 
feudalism. Its theory of royal supremacy was most agree- 
able to sovereigns whose authority over powerful vassals was 
scarcely more than nominal ; its perfection of equity between 
man and man could not fail to render it enticing to clear- 
minded jurists, wearied with the complicated and fantastic 

J Willelmi Egmond. Chron. (MaUheei Analect. IV. 231.) Proost (Le- 
gislation des Jugements de Dieu, p. 16) gives this story, with some varia- 
tions, as occurring at Mons, and states that the duel was authorized by no 
less a personage than the pope John XXII. Cornelius Zanfliet in his 
Chronicle (Martene Ampl. Collect. V. 182) locates it at Cambron in 
Hainault, and states that the Jew was a favorite of William Count of Hai- 
nault. The tale evidently was one which obtained wide currency. 

2 As late as 1492, the Synod of Schwerin promulgated a canon prohi- 
biting Christian burial to those who fell in the duel or in tournaments. — 
Synod. Swerin. ann. 1492, Can. xxiv, (Hartzheim Concil. German. V. 
647.) 

16* 



l86 THE WAGER OF BATTLE. 

privileges of ecclesiastical, feudal, and customary law. Thus 
recommended, its progress was rapid. Monarchs lost no 
opportunity of inculcating respect for that which served 
their purpose so well, and the civil lawyers, who were their 
most useful instruments, speedily rose to be a power in the 
state. Of course the struggle was long, for feudalism had 
arisen from the necessities of the age, and a system on which 
were based all the existing institutions of Europe could only 
be attacked in detail, and could only be destroyed when the 
advance of civilization and the general diffusion of enlighten- 
ment had finally rendered it obsolete. The French Revolu- 
tion was the final battle-field, and that terrible upheaval was 
requisite to obliterate a form of society whose existence had 
numbered nine hundred years. 

The wager of battle was not long in experiencing the first 
assaults of the new power. The earliest efficient steps to- 
wards its abolition were taken in 1231 by the Emperor 
Frederic II. in his Neapolitan code. He pronounces it to 
be in no sense a legal proof, but only a species of divination, 
incompatible with every notion of equity and justice; and 
he prohibits it for the future, except in cases of murder and 
treason where other proof is unattainable; and even in these 
it is placed at the option of the accuser alone, as if to render 
it a punishment and not a trial. ^ The German Imperial 
code, known as the Kayser-Recht, which was probably com- 
piled about the same time, contains a similar denunciation of 
the uncertainty of the duel, but does not venture on a prohi- 
bition, merely renouncing all responsibility for it, while re- 
cognizing it as a settled custom.'-^ In the portion, however, 

1 Constit. Sicular, Lib. II, Tit. xxxii. xxxiii. — " Non tarn vera probntio 
quam quaedam divinatio . . . quae naturae non consonans, a jure communi 
deviat, sequitatis rationibus non consentit." Cf, Lib. I. Tit. xxi. cap. 2. 

2 Cum viderit innocentes in duello succubuisse, et sontes contra in sua 
iniustitia nihilominus vic(oriam obtinuisse. Et ideo in jura imperii scrip- 
turn est, ubi duo ex more in duellum procedunt, hoc non pertinet ad im- 
perium. — Jur. Caesar. P. ii. c. 70. (Senckenberg L 54 ) 



GERMANY. ^ iS'J 

devoted to municipal law, which is probably somewhat later 
in date, the prohibition is much more stringently expressed, 
manifesting the influences at work;^ but even this is contra- 
dicted by a passage almost immediately preceding it. How 
little influence these wise counsels had, in a state so intensely 
feudal and aristocratic, is exemplified in the Suabian and 
Saxon codes, where the duel plays so important a part. Yet 
the desire to escape it was not altogether confined to the 
honest burghers of the cities, for in 1277, Rodolph of Haps- 
burg, even before he granted immunity to the imperial 
towns, gave a charter to the duchy of Styria, securing to the 
Styrians their privileges and rights, and in this he forbade 
the duel in all cases where sufficient testimony could be 
otherwise obtained ; while the general tenor of the document 
shows that this was regarded as a favor. ^ 

Still, as late as 1487, the Inquisitor Sprenger, in discoun- 
tenancing the red-hot iron ordeal in witch-trials, feels him- 
self obliged to meet the arguments of those who urged the 
lawfulness of the duel as a reason for permitting the cognate 
appeal to the ordeal. To this he naively replies, as Thomas 
Aquinas had done, that they are essentially different, as the 
champions in a duel are about equally matched, and the 
killing of one of them is a simple affair, while the iron or- 
deal, or that of drinking boiling water, is a tempting of God 
by requiring a miracle.^ This shows at the same time how 
thoroughly the judicial combat had degenerated from its 
original theory, and that the appeal to the God of battles 
had become a mere question of chance, or of the compara- 
tive strength and skill of a couple of professional bravos. 

In 1248, Don Jayme I. of Aragon, in revising the fran- 
chises of Majorca, prohibited the judicial combat in both 

' Quilibet sciat imperatorem jussisse ut nemo alteram ad duellum pro- 
vocet. . . . Nemo enim unquam fortiores provocari vidit, sed semper 
debiliores, et fortiores semper triiimpharunt. — Ibid. P. iv, cap. 19. 

2 Rudolphi I. Privileg. (Ludewig Reliq. MSS. T. IV. p. 260.) 

' Malleus Maleficar. Francof. 1580, pp. 527-9. 



165 THE WAGER OF BATTLE. 

civil and criminal cases. ^ Within fifteen years from this, 
Alfonso the Wise of Castile issued the code generally known 
as Las Siete Partidas. In this he evidently desired to curb 
the practice as far as possible, stigmatizing it as a custom 
peculiar to the military class (por lid de caballeros o de 
peones), and as reprehensible both as a tempting of God 
and as a source of perpetual injustice.^ Accordingly, he 
subjected it to very important limitations. The wager of 
battle could only be granted by the king himself; it could 
only take place between gentlemen, and in personal actions 
alone which savored of treachery, such as murder, blows, or 
other dishonor, inflicted without warning or by surprise. 
Offences committed against property, burning, forcible 
seizure, and other wrongs, even without defiance, were spe- 
cifically declared not subject to its decision, the body of the 
plaintiff being its only recognized justification.^ Even in 
this limited sphere, the consent of both parties was requisite, 
for the appellant could prosecute in the ordinary legal man- 
ner, and the defendant, if challenged to battle, could elect 
to have the case tried by witnesses or inquest, nor could the 
king himself refuse him the right to do so.* When to this 
is added that a preliminary trial was requisite to decide 
whether the alleged offence was treacherous in its character 

' Du Cange, s. v. Batalia. 

2 Los sabios antiguos que ficieron las leyes non lo tovieron por derecha 
prueba: ed esto por dos razones; la una porque muchas vegadas acaesce 
que en tales lides pierde la verdat e vence lamentira : la otra porque aquel 
que ha voluntad de se adventurar a esta prueba semeja que quiere tentar 
4 Dios nuestro seSor. — Parddas, P. ill. Tit. xiv. 1. 8. 

3 Ibid. P. VII. Tit. iii. 1. 2, 3. According to Montalvo's edition of 
the Partidas (Sevilla, 1491), these laws were still in force under Ferdinand 
and Isabella. 

* Tres dias debese acordar al reptado para escoger una de las tres ma- 
neras que desuso dixiemos, qual mas quisiere porque se libre el pleyto. 
. . . ca el re nin su corte non han de mandar lidiar por riepto. — Ibid. 
P. VII. Tit. iii. 1. 4. Some changes were introduced in these details by 
subsequent ordinances. 



ITS DECLINE IN SPAIN. 1 89 

or not, it will be seen that the combat was hedged around 
with such difficulties as rendered its presence on the statute 
book scarcely more than an unmeaning concession to popu- 
lar prejudice; and if anything were wanting to prove the 
utter contempt of the legislator for the decisions of the battle- 
trial, it is to be found in the regulation that if the accused 
was killed on the field, without confessing the imputed 
crime, he was to be pronounced innocent, as one who had 
fallen in vindicating the truth. ^ The same desire to restrict 
the duel within the narrowest possible limits is shown in the 
rules concerning the employment of champions, which have 
been already alluded to. Although the Partidas as a scheme 
of legislation was not as successful as it deserved to be, and 
although it was most unwillingly received, still, these provi- 
sions were lasting, and produced the effect designed. The 
Ordenamiento de Alcala, issued by Alfonso XL in 1348, 
which remained in force for nearly two centuries, repeats 
the restrictions of the Partidas, but in a very cursory manner, 
and rather incidently than directly, showing that the judicial 
combat was then a matter of little importance, and that the 
ordinances of Alfonso the Wise had become part of the 
national law, to be received as a matter of course.''^ In fact, 
the jurisprudence of Spain was derived so directly from the 
Roman law through the Wisigothic code and its Romance 
recension, the Fuero Juzgo, that the wager of battle could 
never have become so deeply rooted in the national faith as 
among the more purely barbarian races. It was therefore 
more readily eradicated, and yet, as late as the sixteenth 
century, a case occurred in which the judicial duel was pre- 
scribed by Charles V., in whose presence the combat took 
place. ^ 

' Muera quito del riepto; ca razon es que sea quito quien defendiendo 
la verdad recibio muerte. — Ibid. P. vii. Tit, iv. 1. 4. (Preserved in the 
edition of 1491.) 

2 Ordenamiento de Alcala, Tit. xxxil. 11. vii.-xi. 

^ Meyer, Institutions Judiciaires, I. 337. 



190 THE WAGER OF BATTLE. 

The varying phases of the struggle between progress and 
centralization on the one side, and chivalry and feudalism 
on the other, were exceedingly well marked in France, and 
as the materials for tracing them are abundant, a more de- 
tailed account of the gradual reform may perhaps have 
interest, as illustrating the long and painful strife which has 
been necessary to evoke order and civilization out of the 
incongruous elements from which modern European society 
has sprung. The sagacity of St. Louis, so rarely at fault in 
the details of civil administration, saw in the duel not only 
an unchristian and unrighteous practice, but a symbol of the 
disorganizing feudalism which he so energetically labored 
to suppress. His temper led him rather to adopt pacific 
measures, in sapping by the forms of law the foundations of 
the feudal power, than to break it down by force of arms as 
his predecessors had attempted. The centralization of the 
Roman polity might well appear to him and his advisers the 
ideal of a well ordered state, and the royal supremacy had 
by this time advanced to a point where the gradual extension 
of the judicial prerogatives of the crown might prove the 
surest mode of humbling eventually the haughty vassals who 
had so often bearded the sovereign. No legal procedure 
was more closely connected with feudalism, or embodied its 
spirit more thoroughly, than the wager of battle, and Louis 
accordingly did all that lay in his power to abrogate the 
custom. The royal authority was strictly circumscribed, 
however, and though, in his celebrated Ordonnance of 1260, 
he formally prohibited the battle trial in the territory subject 
to his jurisdiction,^ he was obliged to admit that he had no 

' Nous deffendons a tous les batailles par tout nostra demengne, mes 
nous n'ostoiis mie les clains, les respons, les convenants, etc. . . . fors 
que nous ostons les batailles, et en lieu des batailles nous meton prueves 
de tesmoins, et si n'oston par les autres bones prueves et loyaux, qui ont 
este en court laye siques a ore. — Isambert, I. 284. 

Laurifere (Tabl. des Ordonn. p. 17) alludes to an edict to the same pur- 
port, under date of 1240, of which I can nowhere else find a trace. 



REFORMS OF ST. LOUIS. I9I 

power to control the courts of his barons beyond the domains 
of the crown. ^ Even within this comparatively limited 
sphere, we may fairly assume from some passages in the 
Etablissements, compiled about the year 1270, that he was 
unable to do away entirely with the practice. It is to be 
found permitted in some cases both civil and criminal, of 
peculiarly knotty character, admitting of no other apparent 
solution. 2 It seems, indeed, remarkable that he should even 
have authorized personal combat between brothers, in crimi- 
nal accusations, only restricting them in civil suits to fighting 
by champions,^ when the German law of nearly the same 
period forbids the duel, like marriage, between relations in 
the fifth degree, and states that previously it had been pro- 
hibited to those connected in the seventh degree.* 

Even this qualified reform provoked determined opposi- 

There is no reference to it in the Table des Ordonnances of Pardessus 
(Paris, 1847). 

' Se ce est hors I'obeissance le Roy, gage de bataille. (Etab. de St. 
Louis, Liv. II. chap, xi., xxix., xx5^viii.) Beaumanoir repeats it, a quar- 
ter of a century later, in the most precise terms, " Car tout cil qui ont 
justice en le conte poent maintenir lor cort, s'il lor plest, selonc I'ancienne 
coustume; et s'il lor plest il le poent tenir selonc Testablissement le Roy." 
(Cout. du Beauv. cap. xxxix. | 21.) And again, "Car quant li rois Lois 
les osta de sa cort il ne les osta pas des cours a ses barons." (Cap. LXI. 

2 Liv. I. chap, xxvii., xci., cxiii. etc. This is so entirely at variance 
with the general belief, and militates so strongly with the opening asser- 
tion of the Etablissements (Ordonn. of 1260) that I should observe that 
in the chapters referred to the direction for the combat is absolute ; no 
alternative is provided, and there is no allusion to any difference of prac- 
tice prevailing in the royal courts and in those of the barons, such as may 
be seen in other passages (Liv. I. chap, xxxviii., Ixxxi., cxi., etc.). Yet 
in a charter of 1 263, Louis alludes to his having interdicted the duel in 
the domains of the crown, in the most absolute manner. — " Sed quia 
duellum perpetuo de nostris domaniis duximus amovendum." — (Actes du 
Parlement de Paris No. 818 A. T. I. p. 75, Paris, 1863.) 

3 Etablissements Liv. i. chap, clxvii. 

4 Jur. Provin. Alamann. cap. CLXXI. ^ 10, ii, 12. 



192 THE WAGER OF BATTLE. 

tion. Every motive of pride and interest prompted resist- 
ance. The prejudices of birth, the strength of the feudal 
principle, the force of chivalric superstition, the pride of 
self-reliance gave keener edge to the apprehension of losing 
an assured source of revenue. The right of granting the 
wager of battle was one of those appertaining to the hauts- 
justiciers, and so highly was it esteemed that paintings of 
champions fighting frequently adorned their halls as emblems 
of their prerogatives ; Loysel, indeed, deduces from it a 
maxim, ''The pillory, the gibbet, the iron collar, and paint- 
ings of champions engaged, are marks of high jurisdiction."^ 
This right had a considerable money value, for the seigneur 
at whose court an appeal of battle was tried received from 
the defeated party a fine of sixty livres if he was a gentleman, 
and sixty sous if a roturier, besides a perquisite of the 
horses and arms employed, and heavy mulcts for any delays 
which might be asked, '^ besides fines from those who withdrew 
after the combat was decreed.^ Nor was this all, for during 
the centuries of its existence there had grown and clustered 
around the custom an immeasurable mass of rights and privi- 

' Pilori, echelle, carquant, et peintures de champions combattans sont 
marques de haute justice. — Instit. Coutum Liv. II. Tit. li. Regie 47. 

2 Beaumanoir, op. cit. chap. LXI. W 11, 12, 13. 

In Normandy, these advantages were enjoyed by all seigneurs justiciers. 
"Tuit chevaher ettuit sergent ont enleurs terres leur justice de bataille en 
cause citeaine; et quant li champions sera vaincuz, il auront LX sols et I 
denier de la recreandise." — Etab. de Normandie (Ed Marnier, p. 30.) 
These minutely subdivided and parcelled out jurisdictions were one of the 
most prolific causes of debate during the middle ages, not only on account 
of the power and influence, but also from the profits derived from them. 
That the privilege of decreeing duels was not the least remunerative of 
th' se rights is well manifested by the decision of an inquest held during 
the reign of Philip Augustus to determine the conflicting jurisdictions of 
the ducal court of Normandy and of the seigneurs of Vernon. It will be 
found quoted in full by Beugnot in his notes to the Olim, T. I. p. 969. 

3 See Coutume de Saint-Bonnet, cap. 13. (Meyer, Recueil d'Anciens 
Textes, Paris, 1874, 1. 175.) 



STRUGGLES OF THE FEUDATORIES. I93 

leges which struggled lustily against destruction. Thus, 
hardly had the ordonnance of prohibition been issued when, 
in 1260, a knight named Mathieu-le-Voyer actually brought 
suit against the king for the loss it inflicted upon him. He 
dolefully set forth that he enjoyed the privilege of guarding 
the lists in all duels adjudged in the royal court at Corbon, 
for which he was entitled to receive a fee of five sous in each 
case ; and, as his occupation thus was gone, he claimed com- 
pensation, modestly suggesting that he be allowed the same 
tax on all inquests held under the new law.^ 

How closely all such sources of revenue were watched is 
illustrated by a case occurring in 1286, when Philippe-le-Bel 
remitted the fines accruing to him from a duel between two 
squires adjudged in the royal court of Tours. The seneschal 
of Anjou and Touraine brought suit before the Parlement of 
Paris to recover one-third of the amount, as he was entitled 
to that proportion of all dues arising from combats held 
within his jurisdiction, and he argued that the liberality of 
the king was not to be exercised to his disadvantage. His 
claim was pronounced just, and a verdict was rendered in 
his favor. ^ 

But the loss of money was less important than the curtail- 
ment of privilege and the threatened absorption of power of 
which this reform was the precursor. Every step in advan- 
cing the influence of peaceful justice, as expounded by the 
jurists of the royal courts, was a heavy blow to the indepen- 
cience of the feudatories. They felt their ancestral rights 
assailed at the weakest point, and they instinctively recog- 
nized that, as the jurisdiction of the royal bailiff's became 
extended, and as appeals to the court of the Parlement of 
Paris became more frequent, their importance was dimin- 

i Les Olim, I. 491, It is perhaps needless to add that Mathieu's suit 
was fruitless. There are many cases recorded in the Olim showing the 
questions which arose and perplexed the lawyers, and the strenuous efforts 
made by the petty seigneurs to preserve their privileges. 

2 Actes du Parlement de Paris, I. 407. 

17 



194 THE WAGER OF BATTLE. 

ished, and their means of exercising a petty tyranny over 
those around them were abridged. Entangled in the mazes 
of a code in which the unwonted maxims of Roman law 
were daily quoted with increasing veneration, the impetuous 
seigneur found himself the prey of those whom he despised, 
and he saw that subtle lawyers were busily undoing the work 
at which his ancestors had labored for centuries. These 
feelings are well portrayed in a song of the period, exhumed 
not long since by Le Roux de Lincy. Written apparently 
by one of the sufferers, it gives so truthful a view of the con- 
servative ideas of the thirteenth century that a translation of 
the first stanza may not be amiss: — 

Gent de France, mult estes esbahis ! 

Je di a touz ceus qui sont nez des fiez, etc.* 

Ye men of France, dismayed and sore 

Ye well may be. In sooth, I swear, 
Gentles, so help me God, no more 

Are ye the freemen that ye were ! 
Where is your freedom ? Ye are brought 

To trust your rights to inquest- law, 
Where tricks and cjuibbles set at naught 

The sword your fathers wont to draw. 
Land of the Franks ! — no more that name 

Is thine — a land of slaves art thou. 
Of bondsmen, wittols, who to shame 

And wrong must bend submissive now! 

Even legists — de Fontaines, whose admiration of the Di- 
gest led him on all occasions to seek an incongruous alliance 

' Recueil de Chants Historiques Fran^ais, I. 218, It is not unreason- 
able to conjecture that these lines may have been occasioned by the cele- 
brated trial of Enguerrand de Coucy in 1256. On the plea of baronage, 
he demanded trial by the Court of Peers, and claimed to defend himself 
by the wager of battle. St. Louis proved that the lands held by Enguer- 
rand were not baronial, and resisted with the utmost firmness the pressure 
of the nobles who made common cause with the culprit. On the condem- 
nation of de Coucy, the Count of Britanny bitterly reproached the king 
with the degradation inflicted on his order by subjecting its members to 
inquests. — Beugnot, Olim I. 954. — Graudes Chroniques ann. 1256. 



REACTION AFTER SAINT-LOUIS. I95 

between the customary and imperial law, and Beaiimanoir, 
who in most things was far in advance of his age, and who 
assisted so energetically in the work of centralization — even 
these enlightened lawyers hesitate to object to the principles 
involved in the battle trial, and while disapproving of the 
custom, express their views in language which contrasts 
strongly with the vigorous denunciations of Frederic II. half 
a century earlier.^ 

How powerful were the influences thus brought to bear 
against the innovation is shown by the fact that when the 
mild but firm hand of St. Louis no longer grasped the scep- 
tre, his son and successor could not maintain his father's 
laws. In 1280 there is a record of a duel adjudged in the 
king's court between Jeanne de la Valete and the Sire of 
Montricher on an accusation of arson ;^ and about 1283 
Philippe even allowed himself to preside at a judicial duel, 
scarcely more than twenty years after the promulgation of 
the ordonnance of prohibition.^ The next monarch, Phil- 
ippe-le-Bel, was at first guilty of the same weakness, for when 
in 1293 the Count of Armagnac accused Raymond Bernard 
of Foix of treason, a duel between them was decreed, and 
they were compelled to fight before the king at Gisors; 
though Robert d'Artois interfered after the combat had 
commenced, and induced Philippe to separate the antago- 
nists.* Philippe, however, was too astute not to see that his 
interests lay in humbling feudalism in all its forms ; while 

1 Et se li uns et li autres est si enreues, qu'il n'en demandent nul ame- 
surement emrer pueent par folic en p^rill de gages. — (Conseil, chap. xv. 
Tit. xxvii.) Car bataille n'a mie leu ou justise a mesure. — (Ibid. Tit. 
xxviii.) Mult a de perix en plet qui est de gages de bataille, et mult es 
grans mestiers c'on voist sagement avant en tel cas, — Cout. du Beauv. 
chap. Ixiv. ^ I.) Car ce n'est pas coze selonc Diu de soufrir gages en pe- 
tite querele de meubles ou d'eritages; mais coustume les suefre ^s vilains 
cas de crieme. — Ibid. chap. vi. ^ 31. 

2 Actes du Parlement de Paris, T. I. No. 2269 A. p. 217. 
Beaumanoir, op. cit. chap. Ixi. § 63. 

4 Grandes Chroniques, T. IV. p. 104. 



196 THE WAGER OF BATTLE. 

the rapid extension of the jurisdiction of the crown, and the 
limitations on the seignorial courts, so successfully invented 
and asserted by the lawyers, acting by means of the Parle- 
ment through the royal bailiffs, gave him power to carry his 
views into effect such as had been enjoyed by none of his 
predecessors. Able and unscrupulous, he took full advan- 
tage of his opportunities in every way, and the wager of 
battle was not long in experiencing the effect of his encroach- 
ments. Still, he proceeded step by step, and the vacillation 
of his legislation shows how obstinate was the spirit with 
which he had to deal. In 1296 he prohibited the judicial 
duel in time of war, and in 1303 he was obliged to repeat 
the prohibition.^ It was probably not long after this that he 
interdicted the duel wholly'^ — possibly impelled thereto by a 
case occurring in 1303, in which he is described as forced to 
grant the combat between two nobles, on an accusation of 
murder, very greatly against his wishes, and in spite of all 
his efforts to dissuade the appellant.^ 

In thus abrogating the wager of battle, Philippe-le-Bel was 
in advance of his age. Before three years were over he was 
forced to abandon the position he had assumed; and though 
he gave as a reason for the restoration of the duel that its 
absence had proved a fruitful source of encouragement for 

1 Isambert, II. 702, 8.06. 

2 I have not been able to find this Ordonnance. Lauriere alludes to it 
(Tabl. des Ordonn. p, 59), but the passage of Du Cange which he cites 
refers only to prohibition of tournaments. The catalogue of Pardessus and 
the collection of Isambert contain nothing of the kind, but that some legis- 
lation of this nature actually occurred is evident from the preamble to the 
Ordonnance of 1306 — " Savoir faisons que comme 9a en arriere, pour le 
commun prouffit de nostre royaume, nous eussions defendu generaument ^ 
tous noz subgez toutes manieres de guerres at tous gaiges de batailles, etc." 
It is v\^orthy of note that these ordonnances of Philipoe were no longer 
confined to the domain of the crown, but purported to regulate the cus- 
toms of the whole kingdom. 

8 Willelmi Egmond. Chron. (Matthaei Analect. IV. 135-7.) 



REFORMS OF PH ILI P PE - LE- B EL . I97 

crime and villany/ yet at the same time he took care to 
place on record the assertion of his own conviction that it 
was worthless as a means of seeking justice.^ In thus legal- 
izing it by the Ordonnance of 1306, however, he by no 
means replaced it on its former footing. It was restricted to 
criminal cases involving the death penalty, excepting theft, 
and it was only permitted when the crime was notorious, the 
guilt of the accused probable, and no other evidence attain- 
able.^ The ceremonies prescribed, moreover, were fearfully 
expensive, and put it out of the reach of all except the 
wealthiest pleaders. As the Ordonnance, which is very 
carefully drawn, only refers to appeals made by the prose- 
cutor, it may fairly be assumed that the defendant could 
merely accept the challenge and had no right to offer it. 

Even with these limitations, Philippe was not disposed to 
sanction the practice within the domains of the crown, for, 
the next year (1307), we find him commanding the seneschal 
of Toulouse to allow no duel to be adjudged in his court, 
but to send all cases in which the combat might arise to the 
Parlement of Paris for decision.^ This was equivalent to a 
formal prohibition. During the whole of the period under 

' Dont pluseurs malfaicteurs se sont avancez par la force de leurs corps 
et faulx engins a faire homicides, traysons et tous autres mal^fices, griefz 
et excez, pource que quant ilz les avoient fais couvertement et en repost, 
ilz ne povoient estre convaincuz par aucuns tesrhoings dont par ainsi le 
malefice se tenoit. — Ordonnance de 1306 (Ed. Crapelet, p. 2). 

2 Car entre tous les perilz qui sont, est celui que on doit plus craindre et 
doubter, dont maint noble s'est trouve deceu ay ant bon droit ou non, par 
trop contier en leurs engins et en leurs forces ou par leurs ires oultrecuidees. 
— Ibid. p. 34. A few lines further on, however, the Ordonnance makes 
a concession to the popular superstition of the time in expressing a convic- 
tion that those who address themselves to the combat simply to obtain jus- 
tice may expect a special interposition of Providence in their favor. " Et 
se I'interesse, sans orgueil ne maltalent, pour son bon droit seulement, 
requiert bataille, ne doit doubter engin ne force, car le vray juge sera pour 
lui." 

' Ordonnance de 1306, cap. i. * Isambert, II. 850. 

17* 



198 THE WAGER OF BATTLE. 

consideration, numerous causes came before the Parlement 
concerning challenges to battle, on appeals from various 
jurisdictions throughout the country, and it is interesting to 
observe how uniformly some valid reason was found for its 
refusal. In the public register of decisions, extending from 
1254 to 1318, scarcely a single example of its permission is 
to be found/ The only doubtful instance which I have ob- 
served is a curious case occurring in 1292, wherein a man 
accused a woman of homicide in the court of the Chapter of 
Soissons, and the royal officers interfered on the ground that 
the plaintiff was a bastard. As by the local custom he thus 
was in some sort a serf of the crown, they assumed that he 
could not risk his body without the express permission of 
the king. The Chapter contended for the appellant's legiti- 
macy, and the case became so much obscured by the loss of 
the record of examinations made, that the Parlement finally 
shuffled it out of court without any definite decision.^ 

Two decisions, in 1309, show that the Ordonnance of 
1306 was in force, for while they admit that the duel was 
legally possible, the cases are settled by inquest as capable of 
proof by investigation. One of these was an incident in the 
old quarrel between the Counts of Foix and Armagnac, and 
its decision shows how great a stride had been made since 
their duel of 1293. Raymond de Cardone, a kinsman of 
Foix, gaged his battle in the king's court against Armagnac ; 
Armagnac did the same against Foix and claimed that his 
challenge had priority over that of Raymond, while Bernard 
de Comminges also demanded battle of Foix. All these 
challenges arose out of predatory border incursions between 
these nobles, and in its verdict the Parlement refuses to grant 
the combat in any of them, orders all the parties to swear 
peace and give bail to keep it, and moreover condemns Foix 
in heavy damages to his adversaries and to the king, whose 

' See Les OWm, passim. 

2 Actes du Pailement de Paris, I. 446. 



REFORMS OF PH ILT PP E -L E - B EL . I99 

territories he had invaded in one of his forays. The Count 
of Foix made some objection to submitting to the sentence, 
but a short imprisonment brought him to his senses.^ A 
more thorough vindication of the royal jurisdiction over 
powerful feudatories could scarcely be imagined, and the 
work of the civil lawyers seemed to be perfectly accom- 
plished. It was the same with all the variety of cases in- 
volving the duel which were brought to the cognizance of 
the Parlement, Some ingenious excuse was always found 
for refusing it, whether by denying the jurisdiction of the 
court which had granted it, or by alleging other reasons 
more or less frivolous, the evident intention of all the arrets 
being to restrict the custom, as allowed under the Ordon- 
nance, within limits so narrow as to render it practically a 
nullity. The astute lawyers who composed the royal court 
knew too well the work committed to them to hesitate as to 
their conclusions. 

In spite of these efforts, the progress of reform was slow. 
On the breaking out afresh of the perennial contest with 
Flanders, Philippe found himself, in 13 14, obliged to repeat 
his order of 1296, forbidding all judicial combats during the 
war, and holding suspended such as were in progress.^ As 
these duels could have little real importance in crippling his 
military resources, it is evident that he seized such occasions 
to accomplish under the war power what his peaceful prero- 
gative was unable to effect, and it is a striking manifestation 
of his zeal in the cause, that he could turn aside to give at- 
tention to it amid the preoccupations of the exhausting strug- 
gle with the Flemings. Yet how little impression he made, 
and how instinctively the popular mind still turned to the 
battle ordeal, as the surest resource in all cases of doubt, is 
well illustrated by a passage in a rhyming chronicle of the 

1 Les Olim, III. 381-7.— Vaissette, Hist. Gen. de Languedoc, T. IV., 
Preuves, 140-44. 

2 Isambert, III, 40. 



200 THE WAGER OF BATTLE. 

day. When the close of Philippe's long and prosperous 
reign was darkened by the terrible scandal of his three 
daughters-in-law, and two of them were convicted of adul- 
tery, Godefroy de Paris makes the third, Jeanne, wife of 
Phil ippe-le-Long, offer at once to prove her innocence by 
the combat : — 

Gentil roy, je vous requier, sire, 

Que vous m'oiez en deffendant. 

Se nul ou nule demandant 

Me vait chose de mauvestie, 

Mon cuer sens si pur, si haitie, 

Que bonement me deffendrai, 

Ou tel champion baillerai, 

Qui bien saura mon droit deffendre, 

S'il vous plest a mon gage prendre.^ 

The iron hand of Philippe was no sooner withdrawn than 
the nobles made desperate efforts to throw off the yoke 
which he had so skilfully and relentlessly imposed on them. 
His son, Louis-le-Hutin, not yet firmly seated on the throne, 
was constrained to yield a portion of the newly-acquired 
prerogative. The nobles of Burgundy, for instance, in their 
formal list of grievances, demanded the restoration of the 
wager of battle as a right of the accused in criminal cases, 
and Louis was obliged to promise that they should enjoy it 
according to ancient custom.^ Those of Amiens and Ver- 
mandois were equally clamorous, and for their benefit he 
re-enacted the ordonnance of 1306, permitting the duel in 
criminal prosecutions, where other evidence was deficient, 
with an important extension authorizing its application to 
cases of theft, in opposition to previous usage. ^ A legal 

1 Chronique M^trique, I. 6375. 

2 Et quant au gage de bataille, nous voullons que il en usent, si comme 
Ten fesoit anciennement. — Ordonn. Avril I3i5,cap. i. (Isambert, III. 62.) 

3 Nous voullons et octroions que en cas de murtre, de larrecin, de rapte, 
de trahison et de roberie, gage de bataille soit ouvert, se les cas ne pouvo- 
ient estre prouvez par tesmoings — Ordonn. 15 Mai 13 15. (Isambert, 
III. 74.) 



FINAL STRUGGLES OF FEUDALISM. 20I 

record, compiled about 1325 to illustrate the customs of 
Picardy, shows by a group of cases that it was still quite com- 
mon, and that indeed it was the ordinary defence in accusa- 
tions of homicide.^ The nobles of Champagne demanded 
similar privileges, but Louis, by right of his mother, Jeanne 
de Champagne, was Count of Champagne, and his authority 
was less open to dispute. He did not venture on a decided 
refusal, but an evasive answer, which was tantamount to a 
denial of the request,^ showed that his previous concessions 
were extorted, and not willingly granted. Not content with 
this, the Champenois repeated their demand, and received 
the dry response, that the existing edicts on the subject must 
be observed.^ 

The threatened disturbances were avoided, and during the 
succeeding years the centralization of jurisdiction in the 
royal courts made rapid progress. It is a striking evidence 
of the successful working of the plans of St. Louis and 
Philippe -le-Bel that several ordonnances and charters granted 
by Philippe-le-Long in 13 18 and 13 t 9, while promising re- 
forms in the procedures of the bailiffs and seneschals, and in 
the manner of holding inquests, are wholly silent on the 
subject of the duel, affording a fair inference that complaints 
on that score were no longer made.* Philip of Valois was 
especially energetic in maintaining the royal jurisdiction, 
and when in 1330 he was obliged to restrict the abusive use 
of appeals from the local courts to the Parlement,^ it is evi- 
dent that the question of granting or withholding the wager 
of battle had become practically a prerogative of the crown. 
That the challenging of witnesses must ere long have fallen 
into desuetude is shown by an edict of Charles VL, issued in 
1396, by which he ordered that the testimony of women 

1 Ancien Coutumier inedit de Picardie, p. 48 (Marnier, Paris, 1840.) 

2 Ordonn. Mai 1315, P. I. chap. 13, (Isambert, III, 90.) 

3 Ibid. P. II. chap. 8. (Isambert, III. 95.) 
* Isambert, III. 196-221. 

^ Ordonn. 9 Mai 1330 (Isambert, IV. 369). 



202 THE WAGER OF BATTLE. 

should be received in evidence in all the courts throughout 
his kingdom.^ 

Though the duel was thus deprived, in France, of its im- 
portance as an ordinary legal procedure, yet it was by no 
means extinguished, nor had it lost its hold upon the confi- 
dence of the people. An instructive illustration of this is 
afforded by the well-known story of the Dog of Montargis. 
Though the learned Bullet^ has demonstrated the fabulous 
nature of this legend, and has traced its paternity up to the 
Carlovingian romances, still, the fact is indubitable that it 
was long believed to have occurred in 137 1, under the reign 
of Charles-le-Sage, and that authors nearly contemporary 
with that period recount the combat of the dog and the 
knight as an unquestionable fact, admiring greatly the saga- 
city of the animal, and regarding as a matter of course both 
the extraordinary judicial proceedings and the righteous 
judgment of God which gave the victory to the greyhound. 

In 1386, the Parlement of Paris was occupied with a subtle 
discussion as to whether the accused was obliged, in cases 
where battle was gaged, to give the lie to the appellant, un- 
der pain of being considered to confess the crime charged, 
and it was decided that the lie was not essential.^ The same 
year occurred the celebrated duel between the Chevalier de 
Carrouges and Jacques-le-Gris, to witness which the King 
shortened a campaign, and in which the appellant was 
seconded by Waleran, Count of St. Pol, son-in-law of the 
Black Prince. Nothing can well be more impressive than 
the scene so picturesquely described by Froissart. The 
cruelly wronged Dame de Carrouges, clothed in black, is 
mounted on a sable scaffold, watching the varying chances 
of the unequal combat between her husband, weakened by 
disease, and his vigorous antagonist; with the fearful cer- 

' Neron, Recueil d'Edits, I. 16. 

2 Dissertations sur la Mythologie Frangaise. 

s De Laurifere, note on Loysel, Instil. Coutum. Lib. vi. Tit. i. Regie 22. 



ITS DECLINE IN FRANCE. 203 

tainty that, if strength alone prevail, he must die a shameful 
death and she be consigned to the stake. Hope grows faint 
and fainter ; a grievous wound seems to place Carrouges at 
the mercy of his adversary, until at the last moment, when 
all appeared lost, she sees the avenger drive his sword 
through the body of his prostrate enemy, vindicating at once 
his wife's honor and his own good cause. ^ Froissart, how- 
ever, was rather an artist than an historian; he would not risk 
the effect of his picture by too rigid an adherence to facts, 
and he omits to mention, what is told by the cooler Juvenal 
des Ursins, that Le Gris was subsequently proved innocent 
by the death-bed confession of the real offender.^ To make 
the tragedy complete, the Anonyme de S. Denis adds that 
the miserable Dame de Carrouges, overwhelmed with re- 
morse at having unwittingly caused the disgrace and death 
of an innocent man, ended her days in a convent.^ So 
striking a proof of the injustice of the battle ordeal is said 
by some writers to have caused the abandonment of the 
practice; but this, as will be seen, is an error, though no 
further trace of the combat as a judicial procedure is to be 
found on the registers of the Parlement of Paris.* 

Still, it was popularly regarded as an unfailing resource. 
Thus, in 1390, two women were accused at the Chatelet of 
Paris of sorcery. After repeated torture, a confession im- 
plicating both was extracted from one of them, but the other 
persisted in her denial, and challenged her companion to 
the duel by way of disproving her evidence. In the record 
of the proceedings the challenge is duly entered, but no no- 
tice whatever seems to have been taken of it by the court, 
showing that it was no longer a legal mode of trial in such 
cases. ^ 

• Froissart, Liv. III. chap. xlix. (Ed. Buchon, 1846.) 

2 Hist, de Charles VI. ann. 1386. 

3 Hist, de Charles VI. Liv. Vl. chap. ix. 

4 Buchon, notes to Froissart, II. 537. 

5 Registre du Chatelet de Paris, I. 350 (Paris, 1861). 



204 THE WAGER OF BATTLE. 

In 1409, the battle trial was materially limited by an or- 
donnance of Charles VI. prohibiting its employment except 
when specially granted by the King or the Parlement;^ and 
though the latter body may never have exercised the privi- 
lege thus conferred upon it, the King occasionally did, as 
we find him during the same year presiding at a judicial 
duel between Guillaume Bariller, a Breton knight, and John 
Carrington, an Englishman.^ The English occupation of 
France, under Henry V. and the Regent Bedford, revived 
the practice, and removed for a time the obstacles to its 
employment. Nicholas Upton, writing in the middle of the 
fifteenth century, repeatedly alludes to tne numerous cases in 
which he assisted as officer of the Earl of Salisbury, Lieu- 
tenant of the King of England ; and in his chapters devoted 
to defining the different species of duel he betrays a singular 
confusion between the modern ideas of reparation of honor 
and the original object of judicial investigation, thus fairly 
illustrating the transitional character of the period.^ 

It was about this time that Philippe-le Bon, Duke of Bur- 
gundy, formally abolished the wager of battle, as far 3.S lay 
in his power, tliroughout the extensive dominions of which 
he was sovereign, and in the Coutumier of Burgundy, as 
revised by him in 1459, there is no trace of it to be found. 
The code in force in Britanny until 1539 permitted it in cases 
of contested estates, and of treason, theft, and perjury — the 
latter, as usual, extending it over a considerable range of 
civil actions, while the careful particularization of details by 
the code shows that it was not merely a judicial antiquity.* 
In Normandy, the legal existence of the judicial duel was 

' Que jamais nuls ne fussent receus au royaume de France a faire gages 
de bataille ou faict d'armes, sinon qu'il y eust gage juge par le roy, ou la 
cour de parlement. — Juvenal des Ursins, ann. 1409. 

2 Monstrelet, Liv. i. chap. Iv. 

3 Nic. Uptoni de Militari Officio Lib. ii. cap. iii. iv. (pp. 72-73). 

4 Tres Ancienne Cout. de Bretagne, chap. 99, 129-135 (Bourdot de 
Richebourg). 



PROLONGED VITALITY. 205 

even more prolonged, for it was not until the revision of the 
coiitumier in 1583, under Henry III., that the privilege of 
deciding in this way numerous cases, both civil and criminal, 
was formally abolished.^ Still, it may be assumed that, 
practically, the custom had long been obsolete, though the 
tardy process of revising the local customs allowed it to re- 
main upon the statute book to so late a date. The fierce 
mountaineers of remote Beam clung to it more obstinately, 
and in the last revision of their code, in 1552, which re- 
mained unaltered until 1789, it retains its place as a legiti- 
mate means of proof, in default of other testimony, with a 
heavy penalty on the party who did not appear upon the 
field at the appointed time.^ 

During this long period, examples are to be found which 
show that although the combat was falling into disuse, it was 
still a legal procedure, which in certain cases could be 
claimed as a right, or which could be decreed and enforced 
by competent judicial authority. Among the privileges of 
the town of Valenciennes was one to the effect that any ho- 
micide taking refuge there could swear that the act had been 
committed in self-defence, when he could be appealed only 
in battle. This gave occasion to a combat in 1455 between 
a certain Mahuot and Jacotin Plouvier, the former of whom 
had killed a kinsman of the latter. Neither party desired 
the battle, but the municipal government insisted upon it, 
and furnished them with instructors to teach the use of the 
staff and buckler allowed as arms. The Comte de Charo- 
lois, Charles-le-Temeraire, endeavored to prevent the useless 
cruelty, but the city held any interference as an infringement 
of its chartered rights; and, after long negotiations, Philippe- 
le-Bon, the suzerain, authorized the combat, and was present 
at it. The combatants, according to custom, had the head 

' Ancienne Cout. de Normandie, chap. 53, 68, 70, 71, 73, etc. (Bourdot 
de Richebourg). 

2 Fors et Cost, de Beam, Ruhr, de Batalha (Bourdot de Richebourg, 
IV. 1093). 
18 



2o6 THE WAGER OF BATTLE. 

shaved and the nails pared on both hands and feet; they 
were dressed from head to foot in a tight fitting suit of hard- 
ened leather, and each was anointed with grease to prevent 
his antagonist from clutching him. The combat was long 
and desperate, but at length the appellant literally tore out 
the heart of his antagonist.^ Such incidents among roturiers, 
however, were rare. More frequently some fiery gentleman 
claimed the right of vindicating his quarrel at the risk of his 
life. Thus, in 1482, shortly after the battle of Nancy had 
reinstated Rene, Duke of Lorraine, on the ruins of the 
second house of Burgundy, two gentlemen of the victor's 
court, quarrelling over the spoils of the battle-field , demanded 
the champ-closj it was duly granted, and on the appointed 
day the appellant was missing, to the great discomfiture and 
no little loss of his bail.^ When Charles d'Armagnac, in 
1484, complained to the States General of the inhuman 
destruction of his family, committed by order of Louis XL, 
the Sieur de Castlenau, whom he accused of having poisoned 
his mother, the Comtesse d'iVrmagnac, appeared before the 
assembly, and his advocate denying the charge, presented 
his offer to prove his innocence by single combat.^ Li 15 18, 
Henry IL of Navarre ordered a judicial duel at Pau between 
two contestants, of whom the appellant made default; the 
defendant was accordingly pronounced innocent, and was 
empowered to drag through all cities, villages, and other 
places through which he might pass, the escutcheon and 
effigy of his adversary, who was further punished by the 
prohibition thenceforth to wear arms or knightly bearings.* 
In 1538, Francis I. granted the combat between Jean du 

' Mathieu de Coussy, chap. cxii. — 01. de la Marche, ch. xxii. 

2 D. Calmet, Hist, de Lorraine. 

3 Jehan Masselin, Journal des Etats de Tours, p. 320. 

^ Archives de Pau, <2/W Mazure et Hatoulet, Fors de Bdarn, p. 130. 
There may have been something exceptional in this case, since the punish- 
ment was so much more severe than the legal fine of 16 sous quoted above. 
(Fors de Morlaas, Ruhr, iv.) 



GRADUAL DISAPPEARANCE. 207 

Plessis and Gautier de Dinteville, which would appear to 
have been essentially a judicial proceeding, since the defend- 
ant, not appearing at the appointed time, was condemned to 
death by sentence of the high council, Feb. 20, 1538.^ The 
duel thus was evidently still a matter of law, which vindi- 
cated its majesty by punishing the unlucky contestant who 
shrank from the arbitrament of the sword. 

Allusion has already been made to the celebrated combat 
between Chastaigneraye and Jarnac, in 1547, wherein the 
death of the former, a favorite of Henry II., led the monarch 
to take a solemn oath never to authorize another judicial 
duel. Two years later, two young nobles of his court, 
Jacques de Fontaine, Sieur de Fendilles, and Claude des 
Guerres, Baron de Vienne-le-Chatel, desired to settle in this 
manner a disgusting accusation brought against the latter by 
the former. The king, having debarred himself from grant- 
ing the appeal, arranged the matter by allowing Robert de 
la Marck, Marshal of France and sovereign Prince of Sedan, 
to permit it in the territory of which he was suzerain. Fen- 
dilles was so sure of success that he refused to enter the lists 
until a gallows was erected and a stake lighted, where his 
adversary after defeat was to be gibbeted and burned. Their 
only weapons were broad-swords, and at the first pass Fen- 
dilles inflicted on his opponent a fearful gash in the thigh, 
Des Guerres, seeing that loss of blood would soon reduce 
him to extremity, closed with his antagonist, and being a 
skilful wrestler, speedily threw him. Reduced to his natural 
weapons, he could only inflict blows with the fist, which 
failing strength rendered less and less effective, when a scaf- 
fold crowded with ladies and gentlemen gave way, throwing 
down the spectators in a shrieking mass. Taking advantage 
of the confusion, the friends of Des Guerres violated the law 
which imposed absolute silence and neutrality on all, and 
called to him to blind and suffocate his adversary with sand. 

' D. Calmet, Hist, de Lorraine. 



208 THE WAGER OF BATTLE. 

Des Gnerres promptly took the hint, and Fendilles suc- 
cumbed to this unknightly weapon. Whether he formally 
yielded or not was disputed. Des Guerres claimed that he 
should undergo the punishment of the gallows and stake 
prepared for himself, but de la Marck interfered, and the 
combatants were both suffered to retire in peace. ^ This is 
the last recorded instance of the wager of battle in France. 
The custom appears never to have been formally abolished, 
and so little did it represent the thoughts and feelings of the 
age which witnessed the Reformation, that when, in 1566, 
Charles IX. issued an edict prohibiting duels, no allusion 
was made to the judicial combat. The encounters which he 
sought to prevent were solely those which arose from points 
of honor between gentlemen, and the offended party was 
ordered not to appeal to the courts, but to lay his case be- 
fore the Marshals of France, or the governor of his province.^ 
The custom had died a natural death. No ordonnance was 
necessary to abrogate it; and, seemingly from forgetfulness, 
the crown appears never to have been divested of the right 
to adjudge the wager of battle. Yet even in 1607, Henry, 
Duke of Lorraine, procured from the Emperor Rodolph II. 
a confirmation of the privilege which he claimed from of old 
that all combats taking place between the Rhine and the 
Meuse should be fought out in his presence.^ 

In Hungary, it was not until 1492 that any attempt was 
made to restrict the judicial duel. In that year Vladislas II. 
prohibited it in cases where direct testimony was procurable ; 
where such evidence was unattainable, he still permitted it, 

1 Brantome, Discours sur les Duels. An account of this duel, pub- 
lished at Sedan, in 1620, represents it as resulting even less honorably to 
Fendilles. He is there asserted to have formally submitted, and to have 
been contemptuously tossed out of the lists like a sack of corn, Des Guerres 
marching off triumphantly, escorted with trumpets. 

2 Fontanon, I. 665. 

3 Belitz de Duellis German, p. 15. 



ITALY FLANDERS. 209 

both in civil and criminal matters, and he alleged as his 
reason for the restriction, the almost universal employment 
of champions who treacherously sold out their principals. 
The terms of the decree show that previously its use was 
general, though he declared it to be a custom unknown else- 
where.^ Even the precocious civilization of Italy, which 
usually preferred astuteness to force, could not altogether 
shake off the traditions of the Lombard law until the six- 
teenth century. In 1505, Julius II. forbade the duel under 
the severest penalties, both civil and ecclesiastical, in a de- 
cretal of which the expressions allow the fair conclusion that 
until then the wager of battle was still in some cases em- 
ployed as a legal process within the confines of the pontifical 
states.^ 

In Flanders, it is somewhat remarkable that the duel 
should have lingered until late in the sixteenth century, 
although, as we have seen above, the commercial spirit of 
that region had sought its abrogation at a very early period, 
and had been seconded by the efforts of Philippe-le-Bon in 
the fifteenth century. Damhouder, writing about the mid- 
dle of the sixteenth century, states that it was still legal in 
matters of public concern, and even his severe training as a 
civil lawyer cannot prevent his declaring it to be laudable in 
such affairs.^ Indeed, when the Council of Trent, in 1563, 
stigmatized the duel as a work of the devil and prohibited 

' Quia in duellorum dimicatione plurimse hinc inde fraudes committi 
possunt; raro enim illi inter quos illud fit judicium per se decertant, sed 
pugiles conducunt, qui nonnunquam dono, favore, et promissis corrum- 
puiitur. — L. Uladis. II. c. ix. (BaUhyani, I. 531.) 

2 Duellorum et gladiatorum hujusmodi usum damnamus et improbamus, 
et in terris Rom. Ecclesiae mediate vel immediate subjectis . . . . e qua- 
cunque causa, etiam a legibus permissa, fieri omnino prohibemus. — Can. 
Regis Pacifici, De Duello, in Septimo. 

3 Reperio tamen indubie vulgarem purgationem sive duellum in casu 
sine scrupulo admittendum quum publicae salutis caussa fiat : et istud est 
admodum laudabile. — Damhouder. Rer. Crimin. Praxis cap. xlii. No. 12. 
(Antverp. 1601.) 

iS* 



2IO THE WAGER OF BATTLE. 

all potentates from granting it under pain of excommunica- 
tion and forfeiture of all feudal possessions,' the state Coun- 
cil of Flanders, in their report to the Duchess of Parma on 
the reception of the Council, took exception to this canon, 
and decided that the ruler ought not to be deprived of the 
power of ordering the combat.^ In this view, the Council 
of Namur agreed.^ 

In Russia, under the code known as the Ulogenie Zako- 
nof, promulgated in 1498, any culprit, after his accuser's 
testimony was in, could claim the duel ; and as both parties 
went to the field accompanied by all the friends they could 
muster, the result was not infrequently a bloody skirmish. 
These abuses were put an end to by the Sudebtnick, issued 
in 1550, and the duel was regulated after a more decent 
fashion, but it continued to flourish legally, until it was 
finally abrogated in 1649 by the Czar Alexis Mikhailovich, 
in the code known as the Sobornoie Ulogenie. The more 
enlightened branch of the Slavonic race, however, the 
Poles, abolished it in the fourteenth century; but Maciei- 
owski states that in Servia and Bulgaria the custom has been 
preserved to the present day.* 

In other countries, the custom likewise lingered to a com- 
paratively late period. Scotland, indeed, was somewhat 
more forward than her neighbors; for in the year 1400, her 
Parliament showed the influence of advancing civilization by 
limiting the practice in several important particulars, which, 
if strictly observed, must have rendered it almost obsolete. 
Four conditions were pronounced essential prerequisites : the 

' Concil. Trident. Sess. xxv. De Reform, cap. xix. Detestabilis duel- 
lorum usus fabricante diabolo introductus, 

2 Anne is usus relinquendus sitarbitrioprincipis? Videtur quod sic, et 
respiciendum esse principi quid discernat. — Ap. le Plat, Monument. Con- 
cil. Trident. VII. 19. 

3 Le Plat, VII. 75. 

< For these details I am indebted to Du Boys, Droit Criminel des Peu- 
ples Modernes, I. 611-17, 650. 



SCOTLAND. 211 

accusation must be for a capital crime ; the offence must have 
been committed secretly and by treachery ; reasonable cause 
of suspicion must be shown against the accused, and direct 
testimony both of witnesses and documents must be want- 
ing-' 

Still the '^perfervidum ingenium Scotorum" clung to the 
arbitrament of the sword with great tenacity. Knox relates 
that in 1562, when the Earl of Arran was consulting with 
him and others respecting a proposed accusation against 
Bothwell for high treason, arising out of a plan for seizing 
Queen Mary which Bothwell had suggested, the Earl re- 
marked, " I know that he will offer the combate unto me, 
but that would not be suffered in France, but I will do that 
which I have proposed." In 1567, also, when Bothwell 
underwent a mock trial for the murder of Darnley, he offered 
to justify himself by the duel ; and when the Lords of the 
Congregation took up arms against him, alleging as a reason 
the murder and his presumed designs against the infant 
James 11. , Queen Mary's proclamation against the rebels 
recites his challenge as a full disproval of the charges. 
When the armies were drawn up at Carberry Hill, Bothwell 
again came forward and renewed his challenge. James 
Murray, who had already offered to accept it, took it up at 
once, but Bothwell refused to meet him on account of the 
inequality in their rank. Murray's brother, William of Tul- 
libardin, then offered himself, and Bothwell again declined, 
as the Laird of Tullibardin was not a peer of the realm. 
Many nobles then eagerly proposed to take his place, and 
Lord Lindsay especially insisted on being allowed the privi- 
lege of proving the charge on Bothwell's body, but the latter 
delayed on various pretexts, until Queen Mary was able to 
prohibit the combat.^ 
. In England, the resolute conservatism, which resists inno- 

' Statut. Robert! III. cap. iii. 

2 Knox's Hist, of Reform, in Scotland, pp. 322, 446-7. 



212 THE WAGER OF BATTLE. 

vation to the last, prolonged the existence of the wager 
of battle until a period unknown in other civilized nations. 
At the close of the fourteenth century, when France was 
engaged in rendering it rapidly obsolete, Thomas, Duke of 
Gloucester, dedicated to his nephew Richard II. a treatise 
detailing elaborately the practice followed in the Marshal's 
court with respect to judicial duels. ^ Even a century later, 
legislation was obtained to prevent its avoidance in certain 
cases. The ''Statute of Gloucester" (6 Ed. III. cap. 9), in 
1333, had given to the appellant a year and a day in which 
to bring his appeal of death — a privilege allowed the widow 
or next of kin to put the accused on a second trial after an 
acquittal on a public indictment — which, as a private suit, 
was usually determined by the combat. In practice, this 
privilege was generally rendered unavailing by postponing 
the public prosecution until the expiration of the delay, so 
as to prevent the appeal. In i486, however, a law was 
passed to diminish the frequency of murder, which required 
the trial to be finished before the expiration of the year and 
day, and ordered the justices, in case of acquittal, to hold 
the defendant in prison or on bail until the time had passed, 
so as to insure to the widow or next of kin the opportunity 
of prosecuting the appeal of death. ^ Another evidence of 
the prevalence of the custom is to be found in the rule which, 
in the fifteenth century, permitted a priest to shrive a man 
who was about to wage his battle, without regard to the fact 
as to whose ^parishioner he might legally be— 

And of mon that schal go fyghte 
In a bateyl for hys ryghte, 
Hys schryft also thou myghte here, 
Thagh he thy pareschen neuer were.^ 

' Spelman (Gloss, s. v. Camptis) gives a Latin translation of this 
interesting document from a MS. of the period. 

2 3 Henr. VII, cap, I. 

8 John Myrc's Instructions for Parish Priests, p. 26. (Early English 
Text Society, 1868.) 



ENGLAND. 2I3 

With the advance of civih'zation and refinement, the cus- 
tom gradually declined, but it was not abolished. In 1571 
a case occurred, as Spelman says, '^non sine magna juris- 
consultorum perturbatione," when to determine the title to 
an estate in Kent, Westminster Hall was forced to adjourn to 
Tothill Fields, and all the forms of a combat were literally 
enacted, though an accommodation between the parties saved 
the skulls of their champions.* 

A curious custom, peculiar to the English jurisprudence, 
allowed a man indicted for a capital offence to turn ^'ap- 
prover," by confessing the crime and charging or appealing 
any one he chose as an accomplice, and this appeal was 
usually settled by the single combat. This was sufficiently 
frequent to require legislation as late as the year 1599, when 
the Act 41 Eliz. chap. 3 was passed to regulate the nice ques- 
tions which attended appeals of several persons against one, 
or of one person against several. In the former case, the 
appellee, if victorious in the first duel, was acquitted; in the 
latter, the appellor was obliged to fight successively with all 
the appellees.^ Even in the seventeenth century, instances 
occurred of the battle ordeal between persons of high station. 
In civil suits the last case on record, I believe, is that of 
Claxton V. Lilburn, which shows curiously enough the indis- 
position to put an end to what was regarded by common con- 
sent as a solecism. A valuable estate in Durham, said to be 
worth more than ;^2oo a year, was the subject in dispute. 
Claxton had been unsuccessful in a suit for its recovery, and 
had brought a new action, to which Lilburn responded, 
Aug. 6th, 1638, by producing in court his champion, George 
Cheney, in array, armed with, a sandbag and battoon, who 
cast into the court his gauntlet with five small pence in it, 

1 Spelman, Gloss, p. 103. 

2 Hale, Pleas of the Crown, II. chap. xxix. According to Pike (Hist, 
of Crime in England, I. 286 sq. ) the records show that approvers almost 
invariably either died in prison or were hanged in consequence of the 
acquittal of the party whom they accused. It was very rare that a combat 
ensued. 



214 THE WAGER OF BATTLE. 

and demanded battle. Claxton rejoined by producing a 
champion similarly armed, and gaged his battle. The court 
was nonplussed, putting off the proceedings from day to day, 
and seeking some excuse for refusing the combat. The 
champions were interrogated, and both admitted that they 
were hired for money. King Charles demanded the opinion 
of the Chief Justice and all his barons whether this was suf- 
ficient to invalidate the proceedings, but they unanimously 
replied that after battle was gaged and sureties given, such 
confession was no bar to its being carried out. The King 
then ordered his judges if possible to find some just way for 
its prevention, but they apparently could do nothing save 
procrastinate the matter for years, for in 1641 Lilburn peti- 
tioned the Long Parliament, setting forth that he had repeat- 
edly claimed his right of battle and had produced his cham- 
pion, but was ever put off by the judges finding some error 
in the record. Parliament thereupon ordered a bill to be 
brought in taking away the judicial combat.^ It was not 
enacted however, and Sir Matthew Hale, writing towards 
the close of the century, feels obliged to describe with con- 
siderable minuteness the various niceties of the law, though 
he is able to speak of the combat as " an unusual trial at 
this day. "2 

In 1774, the subject incidentally attracted attention in a 
manner not very creditable to the enlightenment of English 
legislation. When, to punish the rebellious Bostonians for 
destroying the obnoxious tea, a ''Bill for the improved ad- 
ministration of justice in the province of Massachusetts Bay" 
was passed, it originally contained a clause depriving the 
New Englanders of the appeal, of death, by which, it will be 
remembered, a man acquitted of a charge of murder could 
be again prosecuted by the next of kin, and the question 
could be determined by the wager of battle. The denial of 
this ancestral right aroused the indignation of the liberal 

' Rushworth's Collections, Vol. I. P. I. pp. 788-90, P. III. p. 356. 
2 Hale, loc. cit. 



ENGLAND. 215 

party in the House of Commons, and the point was warmly- 
contested. The learned and eloquent Dunning, afterwards 
Lord Ashburton, one of the leaders of opposition, defended 
the ancient custom in the strongest terms. *'Irise," said 
he, "to support that great pillar of the constitution, the ap- 
peal for murder ; I fear there is a wish to establish a pre- 
cedent for taking it away in England as well as in the 
colonies. It is called a remnant of barbarism and gothicism. 
The whole of our constitution, for aught I know, is gothic. 
.... I wish, sir, that gentlemen would be a little more 
cautious, and consider that the yoke we are framing for the 
despised colonists may be tied round our own necks!" 
Even Burke was -heard to lift a warning voice against the 
proposed innovation, and the obnoxious clause had to be 
struck out before the ministerial majority could pass the 
bill.^ Something was said about reforming the law through- 
out the empire, but it was not done, and the beauty of the 
" great pillar of the constitution," the appeal of death, was 
shown when the nineteenth century was disgraced by the 
resurrection of all the barbaric elements of criminal jurispru- 
dence. In 1818, the case of Ashford vs. Thornton created 
much excitement. Ashford was the brother of a murdered 
girl, whose death, under circumstances of peculiar atrocity, 
was charged upon Thornton, with every appearance of pro- 
bability. Acquitted on a jury trial, Thornton was appealed 
by Ashford, when he pleaded "Not guilty, and I am ready 
to defend the same by my body." After elaborate argu- 
ment. Lord EUenborough, with the unanimous assent of his 
brother justices, sustained the appellee's right to this as '^the 
usual and constitutional mode of trial," expounding the law 
in almost the same terms as those which we read in Bracton 
and Beaumanoir.^ The curious crowd was sorely disap- 
pointed when the appellant withdrew, and the chief justice 

' Campbell's Lives of the Chancellors of England, VI. 112. 

2 I. Barnewall & Alderson, 457. — In April 1867 the journals record the 
death at Birmingham of WiUiam Ashford the appellant in this suit. 
Thornton emigrated to America, and disappeared from sight. 



2l6 THE WAGER OF BATTLE. 

was relieved from the necessity of presiding over a gladiato- 
rial exhibition. A similar case occurred almost simulta- 
neously in Ireland, and the next year the act 59 Geo. III. 
chap. 46, at length put an end to this last remnant of the 
age of chivalry,^ 

America, inheriting the blessings of English law, inherited 
also its defects. The colonies enjoyed the privilege of the 
appeal of death, against the abrogation of which, in the pro- 
vince of Massachusetts Bay, Dunning protested so vehement- 
ly. At least one instance of its employment is to be found 
here, when in 1765, in Maryland, Sarah Soaper appealed a 
negro slave named Tom for the murder of her husband. 
The negro, however, was probably not aware of his privi- 
lege to demand the wager of battle, so he submitted to be 
tried by a jury, and was duly condemned and executed.^ 
John C. Gray, Jr., Esq., of Boston, to whom I am indebted 
for calling my attention to this and some other sources of 
information on the subject, informs me of a tradition that a 
disputed question of boundary between two townships in 
New Hampshire was once settled by combat between cham- 
pions ; but the most conservative State in this respect appears 
to be South Carolina. An act of that colony, in 1712, enu- 
merating the English laws to be held in force, specifically 
includes those concerning appeal of death, and Dr. Cooper, 
in his ^'Statutes at Large of South Carolina," writing in 
1837, seems to think that both the wager of battle and appeal 
of death were still legally in force there at that time.^ So 
Chancellor Kilty, in his Report on English Statutes applica- 
ble to Maryland, made in 181 1, apparently considers that 
the appeal of death was still legally existent, but regards it 
as unimportant in view of the pardoning power and other 
considerations.* 

' Campbell, Chief Justices, III. 169. 

2 I. Harris and McHenry's Md. Reps. 227. 

3 Cooper's Statutes at Large of S. C. II. 403, 715. 

* Kilty's Report on English Statutes, Annapolis, 181 1, p. 141. 



III. 

THE ORDEAL 



The Wager of Battle, in its origin, was simply a mode of 
regulating, under conditions of comparative fairness, the 
primitive law of the strongest. Mingled with this, as we 
have seen, there came to be an appeal to the Divine Power, 
by which men persuaded themselves that the Deity would 
intervene, and would conduct the combat to an issue in ac- 
cordance with his eternal justice. This belief, which formed 
at various periods an element more or less important in the 
battle ordeal, was the sole principle on which were based 
the other forms of the judgment of God ; and the distinction 
thus established between these latter and the judicial combat 
requires them to be considered separately. We may as- 
sume, indeed, that the other ordeals represent a later 
development in human progress, in which brute strength has 
declined somewhat from its earliest savage supremacy, and 
a reliance upon the interposition of an omnipotent and just 
Godhead, whether single or multiform, has grown suffi- 
ciently strong to be a controlling principle in the guidance 
of daily life. 

Yet this, too, is only a step in the evolution of human 
thought, before it can grasp the conception of an Omnipo- 
tence that shall work out its destined ends, and yet allow its 
mortal creatures free scope to mould their own fragmentary 
portions of the great whole — a Power so infinitely great that 
its goodness, mercy, and justice are compatible with the 
existence of evil in the world which it has formed, so that 
19 



2l8 THE ORDEAL. 

man has full liberty to obey the dictates of his baser passions, 
without being released from responsibility, and, at the same 
time, without disturbing the preordained results of Divine 
wisdom and beneficence. Accordingly, we find in the reli- 
gious history of almost all races, that a belief in a Divine 
Being is accompanied with the expectation that special mani- 
festations of power will be made on all occasions, and that 
the interposition of Providence may be had for the asking, 
whenever man, in the pride of his littleness, condescends to 
waive his own judgment, and undertakes to test the inscru- 
table ways of his Creator by the touchstone of his own 
limited reason. Thus miracles come to be expected as mat- 
ters of every-day occurrence, and the laws of nature are to 
be suspended whenever man chooses to tempt his God with 
the promise of right and the threat of injustice to be com- 
mitted in His name. 

To this tendency of the human mind is attributable the 
almost universal adoption of the so-called Judgment of God, 
by which men, oppressed with doubt, have essayed in all 
ages to relieve themselves from responsibility by calling in 
the assistance of Heaven. Nor, in so doing, have they 
seemed to appreciate the self-exaltation implied in the act 
itself, but in all humility have cast themselves and their sor- 
rows at the feet of the Great Judge, making a merit of abne- 
gating the reason which, however limited, has been bestowed 
to be used and not rejected. In the Carlovingian Capitula- 
ries there occurs a passage, dictated doubtless by the spirit 
of genuine trust in God, which well expresses the pious sen- 
timents presiding over acts of the grossest practical impiety. 
" Let doubtful cases be determined by the judgment of God. 
The judges may decide that which they clearly know, but 
that v«4iich they cannot know shall be reserved for Divine 
judgment. Whom God hath kept for his own judgment 
may nbt be condemned by human means. ' Therefore judge 
nothing before the time, until the Lord come, who both will 



CHINA. 219 

bring to light the hidden things of darkness, and will make 
manifest the counsels of the hearts.' "^ (i Cor. iv. 5.) 

The superstition which we here find dignified with the 
forms of Christian faith manifests itself among so many races 
and under such, diverse stages of civilization that it may be 
regarded as an inevitable incident in human evolution, only 
to be outgrown at the latest periods of development. In 
this, however, as in so many other particulars, China fur- 
nishes virtually an exception. Her arrested thought exhibits 
itself, in the King or sacred books collected by Confucius 
five hundred years before the Christian era, in nearly the 
same form as is found in the orthodox opinion of to day. 
In this, religious belief is but a system of cold morality, 
which avoids the virtues as well as the errors of more imagi- 
native faiths. In the most revered and authoritative of the 
Chinese Scriptures, the Shu-King, or Holy Book, we find a 
theo-philosophy based on a Supreme Power (Tai-Ki) or 
Heaven, which is pure reason, or the embodiment of the 
laws and forces of nature acting under the pressure of blind 
destiny. It is true that some forms of divination were prac- 
tised, and even enjoined, but no fuller expression of belief 
in direct interposition from above is to be found than that 
contained in the saying attributed to Muh-Wang (about 1000 
B. C.) in his instructions to his judges in criminal cases: 
"Say not that Heaven is unjust; it is man who brings these 
evils on himself. If it were not that Heaven inflicts these 
severe punishments the world would be ungoverned."^ It 
is, therefore, in strict compliance with this philosophy that 
in the modern jurisprudence of China there is no allusion to 
any evidence save that of facts duly substantiated by wit- 
nesses, and even oaths are neither required nor admitted in 
judicial proceedings.^ 

' Capit. Lib, vii. cap. 259. 

2 Shu-King, Pt. IV. ch. 4, 27 \ 21 (after Goubil's translation). 

8 Staunton, Penal Code of China, p. 364. 



220 THE ORDEAL. 

These teachings, however, are too refined and sublimated' 
for ordinary human nature, and along-side of official Confu- 
cianism, Taoism and Buddhism flourish with a wealth of 
legends and marvels that may fairly rival the most exuberant 
fancies of Teutonic medievalism. In the popular mind, 
therefore, the divine interposition may perpetually be ex- 
pected to vindicate innocence and to punish crime, and 
moral teaching to a great extent consists of histories illus- 
trating this belief in all its phases and in every possible con- 
tingency of common-place life. Thus it is related that in 
A. D. 1626 the learned Doctor Wang-i had two servants, 
one stupid and the other cunning. The latter stole from his 
master a sum of money, and caused the blame to fall upon 
his comrade, who was unable to justify himself. By way of 
securing him, he was tied to a flagstaff, and his accuser was 
set to watch him through the night. At midnight the flag- 
staff broke in twain with a loud noise, the upper portion 
falling upon the guilty man and killing him, while the inno- 
cent was left unhurt; and next morning, when the effects of 
the dead man were examined, the stolen money was found 
among them, thus completely establishing the innocence of 
his intended victim.^ Popular beliefs such as these naturally 
find their expression in irregular judicial proceedings, in 
spite of the strict materialism of the written law, and, at least 
in some parts of China, a curious form of the ordeal of 
chance is employed in default of testimony. If an injured 
husband surprises his wife flagrante delicto he is at liberty 
to slay the adulterous pair on the spot ; but he must then 
cut off their heads and carry them to the nearest magistrate, 
before whom it is incumbent on him to prove his innocence 
and demonstrate the truth of his story. As external evidence 
is not often to be had in such cases, the usual mode of trial 
is to place the heads in a large tub of water, which is vio- 

1 Livre des Recompenses et des Peines, trad, par Stan. Julien, Paris, 
1835, p. 220. 



JAPAN AFRICA. 221 

lently stirred. The heads, in revolving, naturally come 
together in the centre, when, if they meet back to back, the 
victims are pronounced guiltless, and the husband is punished 
as a murderer ; but if they meet face to face, the truth of his 
statement is accepted as demonstrated, he is gently bastina- 
doed to teach him that wives should be more closely watched, 
and is presented with a small sum of money wherewith to 
purchase another spouse.^ 

The cognate civilization of Japan yields even more readily 
to the temptation of seeking from the Deity a solution of 
doubt. Anciently there were in general use the judgments 
of God, so well known in medieval Europe, of the wager of 
battle and the ordeal of boiling water, and the latter is still 
customarily employed among the Ainos, or aborigines. Even 
yet two antagonists may be seen to plunge their hands in 
scalding water, the one who suffers the most being convicted, 
while the innocent is expected to escape with injuries so 
slight that they will readily heal."'^ 

Turning to the still savage races of the old world we 
everywhere find these superstitions in full force. Africa 
furnishes an ample store of them, varying from the crudest 
simplicity to the most deadly devices. Among the Kalaba- 
rese, for instance, the afia-edet-ibom is administered with the 
curved fang of a snake, which is dexterously inserted under 
the lid and around the ball of the eye of the accused; if 
innocent, he is expected to eject it by rolling the eye, while, 
if unable to do so, it is removed with a leopard's tooth, and 
he is condemned. Even ruder, and more under the control 
of the operator, is the afia-ibnot-idiok^ in which a white and 
a black line are drawn on the skull of a chimpanzee: this is 
held up before the defendant, when an apparent attraction 

' W. T. Stronach in "Journal of the North China Branch of the Royal 
Asiatic Society," New Series, No. 2, Dec. 1865, p. 176. 
2 Griffis's "Mikado's Empire," New York, 1876, p. 92. 

19* 



222 THE ORDEAL. 

of the white line towards him demonstrates his innocence, 
or an inclination of the black line in his direction pro- 
nounces his guilt. More formidable than these is the ordeal- 
nut, containing a deadly poison which causes frothing at the 
mouth, convulsions, paralysis, and speedy death. In capi- 
tal cases, or even when sickness is attributed to hostile machi- 
nations, the abiadiong, or sorcerer, decides who shall 
undergo the trial ; and as the active principle of the nut can 
be extracted by preliminary boiling, judicious liberality on 
the part of the individual selected is supposed to render the 
ordeal comparatively harmless.^ 

Throughout a wide region of Western Africa, one of the 
most popular forms of ordeal is that of the red water, or 
*^ sassy-bark." In the neighborhood of Sierra-Leone, as 
described by Dr. Winterbottom, it is administered by re- 
quiring the accused to fast for twelve hours, and then to 
swallow a small quantity of rice. After this the infusion of 
the bark is taken in large quantities, as much as a gallon 
being sometimes employed ; if it produces emesia, so as to 
eject all of the rice, the proof of innocence is complete, but 
if it fails in this, or if it acts as a purgative, the accused is 
pronounced guilty. It has narcotic properties, also, a mani- 
festation of which is likewise decisive against the sufferer. 
Among some of the tribes this is determined by placing on 
the ground small sticks about eighteen inches apart, or by 
forming an archway of limbs of trees bent to the ground, 
and requiring the patient to pick his way among them, a 
feat rendered difficult by the vertiginous effects of the poison. 
Although death not infrequently results from the ordeal 
itself, yet the faith reposed in these trials is so absolute that, 
according to Dr. Livingston, they are demanded with eager- 
ness by those accused of witchcraft, confident in their own 
innocence, and believing that the guilty alone can suffer. 
When the red water is administered for its emetic effects, 

' Hutchinson's Impressions of Western Africa, London, 1858. 



AFRICA. 223 

the popular explanation is that the fetish enters with the 
draught, examines the heart of the accused, and, on finding 
him innocent, returns with the rice as evidence.^ A system 
directly the reverse of all this is found in Ashantee, where 
sickness in the ordeal is a sign of innocence, and the lex 
talioiiis is strictly observed. When evidence is insufficient 
to support a charge, the accuser is made to take an oath as 
to the truth of his accusation, and the defendant is then re- 
quired to chew a piece of odum wood, and drink a pitcher 
of water. If no ill effects ensue, he is deemed guilty, and is 
put to death; while if he becomes sick he is acquitted, and 
the accuser suffers in his stead. ^ 

Further to the east in the African continent, the Niam- 
Niam and the neighboring tribes illustrate the endless variety 
of form of which the ordeal is susceptible. These savages 
resort to various kinds of divination which are equally em- 
ployed as a guidance for the future in all important under- 
takings, and as means to discover the guilt or the innocence 
of those accused of crime. The principal of these is the 
horru, in which two polished pieces of damma wood are 
rubbed together, after being moistened with a few drops of 
water. If they glide easily on each other the sign is favor- 
able ; if they adhere together it is unfavorable. Life and 
death are also brought in play, but vicarious victims are 
made the subject of experiment. Thus a cock is taken and 
its head is repeatedly immersed in water until the creature is 
rigid and insensible ; if it recovers, the indication is favor- 
able, if it dies, adverse. Or an oil extracted from the 
bengye wood is administered to a hen, and the same conclu- 
sions are drawn from its survival or death. ^ 

' Examination of the Toxocological Effects of Sassy-Bark, by Mitchell 
and Hammond (Proc. Biological Dep, Acad. Nat. Sci. Phila., 1859). — 
T. Lauder Brunton's Gulstonian Lectures, 1877 (Brit. Med. Journ., 
March 26, 1877). 

2 London Athenseum, May 29, 1875, ?• 7i3' 

'^ Schweinfurth's Heart of Africa, New York, 1874, Vol. XL pp. 32-36, 



224 THE ORDEAL. 

In Madagascar the poison ordeal is less humanely admin- 
istered, with a decoction of the deadly nut of the Tangena 
{Tanghinia venenifera). One of the modes of its application 
is evidently based on the same theory as the ordeal of red 
water and rice, to which it bears a notable resemblance. A 
fowl is boiled, and three pieces of its skin are placed in the 
broth. Then a cupful of the decoction of the Tangena nut 
is given to the accused, followed by the same quantity of the 
broth, with the pieces of skin. Unless the poison speedily 
causes vomiting, it soon kills the patient, which is a satisfac- 
tory proof of his guilt. If vomiting ensues, it is kept up by 
repeated doses of the broth and warm water, and if the bits 
of skin are ejected the accused is declared innocent ; but if 
they are retained he is deemed convicted and is summarily 
despatched with another bowl of the poison. In the perse- 
cutions of 1836 and 1849 directed against the Malagasy 
Christians, many of the converts were tried with the Tangena 
nut, and numbers of them perished.^ 

Springing from the same belief is the process used in 
Tahiti for discovering the criminal in cases of theft. The 
priest, when applied to, digs a hole in the clay floor of his 
hut, fills it with water, and stands over it with a young plan- 
tain in his hand, while invoking his god. The deity there- 
upon conducts the spirit of the thief over the water, and his 
reflection is recognized by the priest.^ 

The races of the Indian archipelago are fully equipped 
with resources of the same kind for settling doubtful cases. 
Among the Dyaks of Borneo questions for which no other 
solution is apparent are settled by giving to each litigant a 
lump of salt, which they drop simultaneously into water, and 
he whose lump dissolves soonest is adjudged the loser ; or 
each takes a living shell and places it on a plate, when lime- 

1 Philadelphia Evening Bulletin, March 7, 187 1. — Ellis's Three Visits 
to Madagascar, chap. I. vi. 

2 Ellis's Polynesian Researches, Vol. I. ch. 14. 



PRE-ARYANS OF INDIA. 22$ 

juice is squeezed over them, and the one whose shell first 
moves under this gentle^stimulant is declared the winner/ 

The black Australioid Khonds of the hill-districts of 
Orissa confirm the universality of these practices by customs 
peculiar to themselves which may be assumed as handed 
down by tradition from prehistoric times. Not only do they 
constantly employ the ordeals of boiling water and oil and 
red-hot iron, which they may have borrowed from their 
Hindu neighbors, but they administer judicial oaths with 
imprecations that are decidedly of the character of ordeals. 
Thus an oath is taken on a tiger's skin with an invocation of 
destruction from that animal upon the perjured; or upon a 
lizard's skin whose scaliness is invited upon him who may 
forswear himself; or over an ant-hill with an imprecation 
that he who swears falsely may be reduced to powder. A 
more characteristic ordeal is that used in litigation concerning 
land, when a portion of earth from the disputed possession is 
swallowed by each claimant in the belief that it will destroy 
him whose pretensions are false. On very solemn occasions, 
a sheep is killed in the name of Tari Pennu, the dreadful 
earth-goddess; rice is then moistened with its blood, and 
this is administered, in the full conviction that she will slay 
the rash litigant who insults her power by perjury.'^ 

The hill-tribes of Rajmahal, who represent another of the 
pre-Aryan Indian races, furnish us with further developments 
of the same principle, in details bearing a marked analogy to 
those practised by the most diverse families of mankind. 
Thus the process by which the guilt of Achan was discovered 
{^Joshua vii. 16-18), and that by which, as we shall see here- 
after, Master Anselm proposed to identify the thief of the 
sacred vessels of Laon, are not unlike the ceremony used 

' Konigswarter, op. cit. p. 202. — E. B. Tylor, in Macmillan's Maga- 
zine, July, 1876. 

2 Macpherson's Memorials of Service in India, London, 1865, p. 2>t^. — 
See also p, 364 for modes of divination somewhat akin to these. 



226 THE ORDEAL. 

when a district is ravaged by tigers or by pestilence, which 
is regarded as a retribution for sin committed by some in- 
habitant, whose identification thus becomes all-important for 
the salvation of the rest. In the process known as Satane a 
person sits on the ground with a branch of the bale tree 
planted opposite to him; rice is handed to him to eat in the 
name of each village of the district, and when the one is 
named in which the culprit lives, he is expected to throw up 
the rice. Having thus determined the village, the same plan 
is adopted with respect to each family in it, and when the 
family is identified, the individual is discovered in the same 
manner. Another form, named Cherreen, is not unlike the 
ordeal of the Bible and key, not as yet obsolete among 
Christians. A stone is suspended by a string, and the names 
of the villages, families, and individuals are repeated, when 
it indicates the guilty by its vibrations. Thieves are also 
discovered and convicted by these processes, and by an- 
other mode known as Gobereen, which is a modification of 
the hot-water ordeal. A mixture of cow-dung, oil, and 
water is made to boil briskly in a pot. A ring is thrown in, 
and each suspected person, after invoking the Supreme 
Deity, is required to find and bring out the ring with his 
hand — the belief being that the innocent will not be burned, 
while the guilty will not be able to put his hand into the pot, 
as the mixture will rise up to meet it.^ 

Reverting to the older races, we find no trace of formal 
ordeals in the fragmentary remains out of which Egyptolo- 
gists thus far have succeeded in reconstructing the antique 
civilization of the Nile valley, but the intimate dependence 
of man on the gods, and the daily interposition of the latter 
in human affairs, taught by the prophets of the temples and 
reverently accepted by the people, render it almost certain 
that in some shape or other the divine judgment was fre- 

1 Lieut. Shaw, in Asiatic Researches, IV. 67, 84. 



EGYPT ASSYRIA. 227 

qiiently consulted in judicial proceedings where human wis- 
dom was at fault. This probably took the form of reference 
to the oracles which abounded in every Egyptian nome. 
Indeed, a story related by Herodotus would seem to show 
that such an interpellation of the divine power was habitual 
in prosecutions when evidence of guilt Avas deficient. Aames 
II., before he gained the crown, was noted for his reckless 
and dissolute life, and was frequently accused of theft and 
carried to the nearest oracle, when he was convicted or ac- 
quitted according to the response. On ascending the throne, 
he paid great respect to the shrines where he had been con- 
demned, and neglected altogether those where he had been 
absolved, saying that the former gave true and the latter lying 
responses.^ 

The Semitic races, while not giving to the ordeal the 
development which it has received among the Aryans, still 
afford sufficient manifestation of its existence among them. 
Chaldean and Assyrian institutions have not as yet been suf- 
ficiently explored for us to state with positiveness whether or 
not the judgment of God was a recognized resource of the 
puzzled dispenser of justice ; but the probabilities are strongly 
in favor of some processes of the kind being discovered when 
we are more fully acquainted with their judicial system. The 
constant invocation of the gods, which forms so marked a 
feature of the cuneiform inscriptions, indicates a belief in the 
divine guidance of human affairs which could hardly fail to 
find expression in direct appeals for light in the administra- 
tion of justice. The nearest approach however to the prin- 
ciple of the ordeal which has thus far been deciphered is 
found in the imprecations commonly expressed in contracts, 
donations, and deeds, by which the gods are invoked to 
shed all the curses that can assail humanity on the heads of 
those who shall evade the execution of their plighted faith, 

i Herod. II, 174. 



228 THE ORDEAL. 

or seek to present false claims. Akin to this, moreover, 
was the penalty frequently expressed in contracts whereby 
their violation was to be punished by heavy fines, the 
greater part of which w^as payable into the treasury of some 
temple.^ 

Among the Hebrews, as a rule, the interposition of Yah- 
veh was expected'directly, without the formulas which human 
ingenuity has invented to invite and ascertain the decisions 
of the divine will. Still, the combat of David and Goliath 
has been cited as a model and justification of the judicial 
duel ; and there are some practices^ described in Scripture 
which are strictly ordeals, and which were duly put forth by 
the local clergy throughout Europe when struggling to defend 
the system against the prohibitions of the Papacy. When 
the man who blasphemed the Lord {Levit. xxiv. 11-16) was 
kept in ward ^*that the mind of the Lord might be showed 
them," and the Lord ordered Moses to have him stoned by 
the whole congregation, we are not told the exact means 
adopted to ascertain the will of Yahveh, but the appeal was 
identical in principle with that which prompted the medieval 
judgment of God. The use of the lot, moreover, which was 
so constantly employed in the most important and sacred 
matters, was not a mere appeal to chance, but was a sacred 
ceremony performed ^'before the Lord at the door of the 
tabernacle of the congregation" to learn what was the deci- 
sion of Yahveh.^ The lot was also used, if not as a regular 
judicial expedient, at all events in unusual cases as a mode 
of discovering criminals, and its results were held to be the 
undoubted revelation of Omniscience. It is more than pro- 
bable that the Urim and Thummin were lots, and that they 
were not infrequently used, as in the cases of Achan and 

' Oppert et M6nant, Documents Jurid. de I'Assyrie, Paris, 1877, pp. 
93, 106, 122, 136, 191, 197, 209, 238, 242, 246, 250, 253. 

2 Numb. xxvi. 55-6; xxxiii. 54, — Joshua xviii. 8-11; xix. I, lO, 17, 
24,51. — I. Chron. xviii. 5-18, 31. — Nehem. x. 34; xi. i. 



JUDAISM ISLAM. 229 

Jonathan.^ And the popular belief in the efificacy of the lot 
is manifested in Jonah's adventure {Jonah \. 7) when the 
sailors cast lots to discover the sinner whose presence brought 
the tempest upon them. The most formal and absolute 
example of the ordeal, however, was the Bitter Water by 
which conjugal infidelity was convicted and punished (^Numb. 
V. 11-31). This curious and elaborate ceremony, which 
bears so marked an analogy to the poison ordeals, was aban- 
doned by order of R. Johanan ben Saccai about the time of 
the Christian era, and is too well known to require more 
than a passing allusion to the wealth of Haggadistic legend 
and the interminable controversies and speculations to which 
it has given rise. I may add, however, that Aben Ezra 
and other Jewish commentators hold that when Moses 
burnt the golden calf and made the Israelites drink the water 
in which its ashes were cast {Exod. xxxii. 20), he adminis- 
tered an ordeal, like that of the Bitter Water, which in some 
way revealed those who had been guilty of idolatry, so that 
the Levites could slay them; and Selden explains this by 
reference to a tradition, according to which the gold of the 
calf reddened the beards of those who had worshipped it, 
and thus rendered them conspicuous.^ 

The teachings of Mahomet were too directly derived from 
Judaism for him to admit into his jurisprudence any formal 
system which depended on miracles to establish justice be- 
tween man and man whenever Allah might be invoked to 
manifest his power. Like the Jews, however, he taught 

• Josh. vii. 14-26, — I. Sam. xiv. 37-45. Cf. Michaelis, Laws of 
Moses, art. 304. — Ewald's Antiq. of Israel, Solly's Translation, pp. 294-6. 
— Kuenen's Religion of Israel, May's Translation, I. 98. 

2 Mishna, Sota ix. 9; Wagenseilii Comment, op. cit. vi. 4. (Ed, Su- 
renhus. III. 257, 291,) The curious who desire further information on 
the subject can find it in Wagenseil's edition of the Tract Sota, with the 
Gemara of the Ain Jacob and his own copious and learned notes, Altdorf, 
1674, 

20 



230 THE ORDEAL. 

that the constant supervision of the divine power is sponta- 
neously exerted, and he carried this so far as to inculcate the 
belief that a judge pure from self-seeking would be inspired 
constantly from above. " He who asks to be made judge 
will not be assisted ; and he who is made judge by compul- 
sion, God sends down to him an angel, who causes his 
actions and sentences to be just." To one who hesitated to 
accept the office, the Prophet said, " God will direct your 
heart, and show you judicial ways, and fix your tongue in 
truth and justice." On the other hand, when a judge is 
unjust, "he separates from himself the assistance and favor 
of God, and the devil is always with him." It was hard on 
litigants when the tribunal might be presided over by either 
Allah or Eblis, but they had no recourse, except in the 
oath, which was the corner-stone of Mahomet's judicial sys- 
tem. In the absence of evidence, the oath of the defendant 
was final, and this incitement to perjury could only be re- 
pressed by investing the oath with the qualities of the ordeal. 
Accordingly he lost no opportunity of insisting upon the 
punishment, here and hereafter, of those who perjured 
themselves before the judgment-seat. Sometimes this failed 
to deter an eager pleader, and then he consoled the defeated 
party with the assurance that his successful adversary would 
suffer in the end, as when the chief of the Cindah tribe 
urged that a Jew, against whom he brought suit for land 
unjustly held, would swear falsely, and the Prophet rejoined, 
'' Swearing is lawful, but he who takes a false oath will have 
no luck in futurity." Tradition relates, however, that fre- 
quently he succeeded thus in frightening those who were 
ready to forswear themselves, as when a man of Hadramut 
claimed land occupied by a Cindah, and, being without evi- 
dence, the defendant was ready to take the oath, when Ma- 
homet interposed, "No one takes the property of another 
by oath but will meet God with his tongue cut off," and the 
Cindah feared God and said, "The land is his." In an- 
other case, when two men were quarrelling over an inherit- 



ISLAM. 231 

ancC; and neither had a witness, he warned them, *' In whose 
favor soever I may order a thing which is not his right, then 
I lay apart for him nothing less than a piece of hell-fire," 
whereupon each litigant exclaimed, " O messenger of God, 
I give up my right to him." Sometimes, however, even 
Mahomet had recourse to a more direct invocation of the 
supreme power, as in a case wherein two men disputed as to 
the ownership of an animal, and neither had witnesses, when 
he directed them to cast lots upon oath.' 

These cases do not bear out the tradition that, when the 
Prophet was perplexed beyond his ability, he had the re- 
source of appealing to the angel Gabriel for enlightenment. 
There is one legend respecting him, however, which mani- 
fests the popular belief that in doubtful cases God may be 
relied on to interpose for the vindication of innocence. A 
youth brought before Mahomet on an accusation of murder, 
protested that the act was committed in self-defence. The 
Prophet ordered the corpse to be entombed, and postponed 
the trial until the next day. The brethren of the slain, still 
insisting on vengeance, were then told that they might inflict 
upon the murderer precisely the same wounds as those which 
they should find on the body. On opening the sepulchre 
for the purpose of ascertaining the exact measure of the 
punishment conceded, they returned affrighted to the judg- 
ment-seat, and reported that they had found nothing but the 
smoke and stench of Gehenna ; whereupon Mahomet pro- 
nounced that Eblis had carried off the corpse of the guilty, 
and that the accused was innocent.^ The prevalence of 
superstitions kindred to this, in spite of the principles laid 
down in the law, is shown by the custom which exists among 
some tribes of Arabs, of employing the ordeal of red-hot 
iron in the shape of a gigantic spoon, to which, when duly 

' Mishcat ul-Masabih, MaUhews's Translation, Calcutta, 18 10, vol 11. 
pp. 221-31. 

2 Loniceri Chron, Turcic. Lib. 11. cap. xvii. 



232 THE ORDEAL. 

heated, the accused applies his tongue, his guilt or innocence 
being manifested by his suffering, or escaping injury.^ A 
species of vulgar divination, common among the Turks, 
moreover, belongs to the same category of thought, as it is 
used in the detection of thieves, by observing the marks on 
wax slowly melted, while certain magic formulas are recited 
over it.'^ 

It is among the Aryan races that we are to look for the 
fullest and most enduring evidences of the beliefs which de- 
veloped into the ordeal, and gave it currency from the rudest 
stages of nomadic existence to periods of polished and en- 
lightened civilization. In the perfect dualism of Mazdeism, 
the Yazatas, or angels of the good creation, were always 
prompt to help the pure and innocent against the machina- 
tions of Ahriman and his Daevas, their power to do so de- 
pending only upon the righteousness of him who needed 
assistance.^ The man unjustly accused, or seeking to obtain 
or defend his right, could therefore safely trust that any 
trial to which he might be subjected Avould be harmless, 
however much the ordinary course of nature would have to 
be turned aside in order to save him. Thus Zoroaster could 
readily explain and maintain the ancestral practices, the com- 
mon use of which by both the Zend and the Hindu branches 
of the Aryan family points to their origin at a period anterior 
to the separation between the kindred tribes. In the frag- 
ments of the Avesta, which embody what remains to us of 
the prehistoric law of the ancient Persians, we find a refer- 
ence to the ordeal of boiling water, showing it to be an 
accepted legal process, with a definite penalty affixed for him 
who failed to exculpate himself in it: — 

• Konigswarter, op. cit. p 203. 

2 Collin de Plancy, Dictionnaire Infernal, s. v. Cdromancie. 

3 The Dinkard, translated by PeshoUm Dustoor Behramjee Sunjana, 
vol. II. p. 65, Bombay, 1876. 



i 



PARS ISM. 233 

*' Creator ! he who knowingly approaches the hot, golden, 
boiling water, as if speaking truth, but lying to Mithra; 

''What is the punishment for it? 

''Then answered Ahura-Mazda: Let them strike seven 
hundred blows with the horse-goad, seven hundred with the 
craosho-charana !"^ 

Possibly also a reminiscence of the ordeal of fire may be 
traced among the crowd of fantastic legends with which the 
career of Zoroaster is embroidered. It is related that when 
an infant he was seized by the magicians, who foresaw their 
future destruction at his hands, and was thrown upon a huge 
pile composed of wood, naphtha, and sulphur, which was 
forthwith kindled; but, through the interposition of Hor- 
mazd, " the devouring flame became as water, in the midst 
of which slumbered the pearl of Zardusht."^ 

In Pehlvi the judicial ordeal was known as var nirang, 
and thirty-three doubtful conjunctures are enumerated as 
requiring its employment. The ordinary form was the pour- 
ing of molten metal on the body of the patient, though 
sometimes the heated substance was applied to the tongue or 
the feet."'* Of the former, a celebrated instance, curiously 
anticipating the story told, as we shall see hereafter, of 
Bishop Poppo when he converted the Danes, is related as a 
leading incident in the reformation of the Mazdiasni religion 
when the Persian monarchy was reconstructed by the Sassa- 
nids. Eighty thousand heretics rem.ained obstinate until 
Sapor I. was so urgent with his Magi to procure their con- 
version that the Dustoor Adurabad offered to prove the 
truth of orthodoxy by suffering eighteen pounds of melted 

' Vendidad, Farg. iv. 156-8. If Prof. Oppert is correct in his render- 
ing of the Medic Behistun inscription, the Zend version of the Avesta is 
not the original, but a translation made by order of Darius Hystaspes 
from the ancient Bactrian, which would greatly increase the antiquity at- 
tributable to this record of primaeval Aryan thought. See " Records of the 
Past," VII. 109. 

2 The Dabistan, Shea and Troyer's translation, I. 219. 

"^ Quoted from the Dinkard by Dr. Haug in Arda-Viraf, p. 145. 

20* 



234 THE ORDEAL. 

copper to be poured over his naked shoulders if the dis- 
senters would agree to yield their convictions in case he 
escaped unhurt. The bargain was agreed to, and carried 
out with the happiest results. Not a hair of the Dustoor's 
body was singed by the rivulets of fiery metal, and the 
recusants were gathered into the fold.^ 

Among the Hindu Aryans so thoroughly was the divine 
interposition expected in the affairs of daily life that, accord- 
ing to the Manava Dharma Sastra, if a witness, within a week 
after giving testimony, should suffer from sickness, or under- 
go loss by fire, or the death of a relation, it was held to be 
a manifestation of the divine wrath, drawn down upon him 
in punishment for perjured testimony.^ As among the 
Zends, there was, therefore, no inducement to abandon the 
ancestral resource of the ordeal as an infallible solution of 
all doubtful questions. In the various forms in which we 
find the ordeal among the Aryans of Europe, it thus main- 
tained its place as a recognized resource of Hindu juris- 
prudence from the earliest records until British supremacy 
swept it away within the recollection of the present gene- 
ration. In the Ramayana, when Rama, the incarnate Vishnu, 
distrusts the purity of his beloved Sita, whom he has rescued 
from the Rakshasha Ravana, she vindicates herself by 
mounting a blazing pyre, from which she is rescued unhurt 
by the fire-god, Agni, himself.^ Manu declares, in the 
most absolute fashion — . 

**Let the judge cause him who is under trial to take fire 
in his hand, or to plunge in water, or to touch separately the 
heads of his children and of his wife. 

"Whom the flame burneth not, whom the water rejects 
not from its depths, whom misfortune overtakes not speedily, 
his oath shall be received as undoubted. 

1 Hyde Hist. vet. Persar. Relig. p. 280 (Ed. 1760). See also, Dabis- 
tan, I, 305-6. 

2 Bk. vn. St. 108. 

3 Monier Williams, Indian Wisdom, 2d ed. p. 360, 



THE HINDUS. 235 

*' When the Rishi Vatsa was accused by his young half- 
brother, who stigmatized him as the son of a Sudra, he 
swore that it was false, and, passing through fire, proved the 
truth of his oath ; the fire, which attests the guilt and the 
innocence of all men, harmed not a hair of his head, for he 
spake the truth." 

And the practical application of the rule is seen in the 
injunction on both plaintiff and defendant to undergo the 
ordeal, even in certain civil cases. ^ 

The purrikeh, parikyah, or ordeal, is prescribed in the 
modern Hindu law in all cases, civil and criminal, which 
cannot be determined by written or oral evidence, or by 
oath, and is sometimes incumbent upon the plaintiff and 
sometimes upon the defendant. In its various forms it bears 
so marked a resemblance to the judgments of God current in 
medieval Europe that the further consideration of its use in 
India may be more conveniently deferred till we come to 
discuss its varieties in detail, except to add that in Hindu, 
as in Christian courts, it has always been a religious as well as 
a judicial ceremony, conducted in the presence of Brahmans, 
and with the use of invocations to the higher powers.^ 

Buddhism naturally followed the legal institutions which it 
found established, and accepted the ordeal, though it could 
scarce form a logical incident in the great system of trans- 
migration whereby the good and evil of the universe dis- 
tributed itself automatically, without supervision from the 
thirty-two heavens. We have seen the influence which 

1 Man. Dharm. Sast. viii, 1 14-16, 190. The resemblance is note- 
worthy between the case of the Rishi Vatsa and that of Lambert of Tus- 
cany, as referred to in the preceding essay. 

2 See Halhed's Gentoo Cede, chap. iii. W 5, 6, 9, lo; chap, xviii. 
(E. I. Company, London, 1776). — Ayeen Akbery, or Institutes of Akbar 
(Gladwin's Translation, London, 1800), vol. ii. pp. 496, sqq. Also a 
paper by Ali Ibrahim Khan, chief magistrate of Benares, communicated 
by Warren Hastings to the Asiatic Society in 1784 (Asiatic Researches, 
I. 389), and extracts from. the Code of Yajnavalkya (Ibid. p. 402). 



236 THE ORDEAL. 

Buddliism exercised on Chinese materialism, and Tibetan 
Shamanism could hardly expect to escape it. Thus in Tibet 
we see the hot- water ordeal assume a form which is literally 
even-handed, and which, if generally enforced, must exert 
a happily repressive influence over litigation. Both plaintiff 
and defendant thrust their arms into a caldron of boiling 
water containing a black and a white stone, the verdict being 
in favor of him who brings up the white/ 

The Hellenic tribes had already, in prehistoric times, 
reached a point of mental development superior to the 
grosser superstitions which find their expression in the ordeal 
as a recognized instrument of judicial investigation. That 
they brought it with them from the East, however, and that 
some recollection of it was handed down to later ages, is 
shown by the allusions in the Antigone of Sophocles when 
the guards protest to Creon their innocence as to the burial 
of Polynices, and offer to prove it by the ordeal : — 

" Ready with hands to bear the red-hot iron, 
To pass through fire, and by the gods to swear 
That we nor did the deed, nor do we know 
Who counselled it, or who performed it." (264-267.) 

And a remnant of the ancestral customs was preserved in the 
solemnities under which litigation was sometimes determined 
by one of the parties taking an oath on the heads of his 
children, or with curses on himself and his family, or passing 
through fire.'^ The poison ordeal, also, was not wholly ob- 
solete. The G?eum or temple of the broad-breasted Earth, 
Gaea Eurysternus, at -^gae in Achaia, was served by a priest- 
ess who, though not necessarily a virgin, was yet required to 
preserve strict celibacy when once invested with her sacred 
functions. If any doubts arose as to her virtue, it was tested 
with a draught of bull's blood, which speedily WTOUght her 

' Duclos, Mem. sur les Epreuves. 

2 Smith's Diet, of Antiq. s. v. Mai'tyria. 



^ 



GREECE — ROME. 237 

punishment if she was guilty. The same temple also fur- 
nished an illustration of ascertaining the divine will by means 
of the lot, for when a vacancy occurred in the priestship, and 
there were several applicants, the choice between them was 
determined by a reference to chance.^ 

Even these traces of the ancient customs of the race dis- 
appear among the Latins, though they preserved in full force 
the habits of thought from which the ordeal took its rise. 
This is seen in the most solemn form of imprecation known 
to the Romans as lending irrevocable force to promissory 
oaths — the '' Jovem lapidem jurare," — whether we take the 
ceremony mentioned by Festus, of casting a stone from the 
hand while adjuring Jupiter to reject in like manner the 
swearer if he should prove forsworn, or the form described 
by Livy as preceding the combat between the Horatii and 
Curiatii, in which a victim was knocked on the he^ad with a 
stone under a somewhat similar invocation.^ Even without 
this ceremony, imprecatory oaths were used which were based 
on the belief that the gods would take men at their word and 
punish them, for forswearing themselves, with the evils which 
they thus invoked. Thus, after the battle of Cannee, P. Cor- 
nelius Scipio forced the nobles who were plotting to leave 
Italy to abandon their design and take an oath in which they 
adjured Jupiter to visit them and all belonging to them 
with the worst of deaths if they proved false. ^ In the legends 
of Rome, moreover, sporadic instances may be found of 
special miraculous interposition to decide the question of 
innocence or guilt, when the gods properly appealed to 
would intervene to save their worshippers. These manifes- 
tations were principally vouchsafed in favor of the Vestals, 
as when the pupil of Emilia was accused of having allowed 

» Pausan. VII. xxv. 8. 

2 Festus s. V. Lapidem. — Liv. I. 24; xxi. 45. — Polyb, lir. xxv. 6-9. — ■ 
Aul. Gell. I. 21. 

3 Liv. XXII. 53. Cf. Fest, s, v. Prtxjurationes. See an example of a 
similar oath taken by a whole army, Liv. ii. 45. 



238 THE ORDEAL. 

the sacred fire to be extinguished, and was preserved by its 
spontaneous ignition on her placing the skirt of her garment 
upon the altar; or when Tucca, falsely arraigned for un- 
chastity, vindicated her purity by carrying water in a sieve; 
or when Claudia Quinta, under a similar charge, made good 
her defence by dragging, with a slender cord, a ship against 
the rapid current of the Tiber after it had run aground and 
resisted all efforts to move it — and this with an invocation to 
the goddess to absolve or condemn her, as she was innocent 
or guilty, which gives to the affair a marked resemblance to 
an established form of judicial ordeal.^ Occasional instances 
such as these had, however, no influence on the forms and 
principles of Roman jurisprudence, which was based on 
reason and not on superstition. With the exception of the 
use of torture, as we shall see hereafter, the accused was not 
required to exculpate himself. He was presumed to be in- 
nocent, and the burden of proof lay not on him but on the 
prosecutor. The maxim of the civil law — "Accusatore non 
probante, reus absolvitur" — is entirely incompatible with the 
whole theory upon which the system of ordeals is based. 

The barbarian Aryans who occupied Europe brought 
with them the ancestral beliefs in a form more easily recog- 
nizable than the remnants which survived through Hellenic 
and Italiote civilization. The Feini, or Irish Celts, boasted 
that their ancient Brehons, or judges, were warned by super- 
natural manifestations, as to the equity of the judgments 
which they rendered. Sometimes these took, the shape of 
blotches on their cheeks when they pronounced false judg- 
ments. Sen Mac Aige was subject to these marks, but witli 
him they disappeared when he decided righteously, while 
Sencha Mac Aillila was less fortunate, for he was visited 
with three permanent blotches for each mistake. Fachtna 
received the surname of Tulbrethach because, whenever he 
delivered a false judgment, ''if in the time of fruit, all the 

' Val. Maxim. I. i. 7; viii. i. 5. — Ovid. Faster, iv. 305 sqq. 



THE CELTS. 239 

fruit in the territory in which it happened fell off in one 
night; if in time of milk, the cows refused their calves; but 
if he passed a true judgment, the fruit was perfect on the 
trees." Morann never pronounced a judgment without 
wearing around his neck a chain, which tightened upon him 
if the judgment was false, but expanded down upon him if'it 
were true. These quaint legends have their interest as mani- 
festing the importance attached by the ancient Irish to the 
impartial administration of absolute justice, and the belief 
entertained that a supernatural power was ever on the watch 
over the tribunals, but these manifestations were too late to 
arrest injustice, as they did not occur until after it was com- 
mitted. The Feini therefore did not abandon the ancient 
resource of the ordeal, as is shown by a provision in the 
Senchus Mor, which grants a delay of ten days to a man 
obliged to undergo the test of boiling water. ^ The Celts of 
the Rhinelands also had a local custom of determining the 
legitimacy of children by an ordeal of the purest chance, 
which became a common -place of Roman rhetoric, and is 
thus described in the Anthology : — 

©a^craXect KeXtoI 7rora/!x£ ^nXfifAovt 'p^vip K. r. X. 
Upon the waters of the jealous Rhine 

The savage Celts their children cast, nor own 
Themselves as fathers till the power divine 

Of the chaste river shall the truth make known. 
Scarce breathed its first faint cry, the husband tears 

Away the new-born babe, and to the wave 
Commits it on his shield, nor for it cares 

Till the wife-judging stream the infant save, 
And prove himself the sire. All trembling lies 

The mother, racked with anguish, knowing well 
The truth, but forced to risk her cherished prize 

On the inconstant waters' reckless swell. 2 



' Senchus Mor, I. 25, 195. Comp. Gloss, p. 199. 

2 Anthol. IX, 125.— Cf. Julian. Imp. Epist. xvi. — Claud, in Rufinum 
II, no, — Pliny describes (Nat, Hist. vii. ii.) a somewhat similar custom 
ascribed to the Pselli, an African tribe who exhaled an odor which put 



240 THE ORDEAL. 

The Teutonic tribes, anterior to their conversion, likewise 
exhibit the ordeal as a recognized resource in judicial pro- 
ceedings. The Norraena branch, as we have seen, cultivated 
the holm-gang, or duel, with ardor, and they likewise em- 
ployed the hot-water ordeal, besides a milder form peculiar 
to themselves entitled the skirsla, in which one of the parties 
to a suit could prove the truth of his oath by passing under 
a strip of turf raised so that it formed an arch with each end 
resting on the ground, the belief being that if he had for- 
sworn himself the turf would fall on him as he passed beneath 
it.^ The Germanic tribes, in their earliest jurisprudence, 
afford similar evidence of adherence to the customs brought 
from the farther East. The most ancient extant recension of 
the Salic law may safely be assumed as coeval with the con- 
version of Clovis, as it is free from all alkisions to Christian 
rules, such as appear in the later versions, and in this the 
trial by boiling water finds its place as a judicial process in 
regular use.^ Among the Bavarians, the decree of Duke 
Tassilo in 772 condemns as a relic of pagan rites a custom 
named stapfsaken, used in cases of disputed debt, which is 
evidently a kind of ordeal from the formula employed, " Let 
us stretch forth our right hands to the just judgment of 
God!"3 

The Slavonians were not behindhand in maintaining the 
ordeal as a judicial process. In Bohemia, the laws of 
Brzetislas, promulgated in 1039, make no allusion to any 
other form of evidence in contested cases, while in Russia it 

serpents to sleep. Each new-born child was exposed to a poisonous snake, 
when if it were legitimate the reptile would not touch it, while if adulte- 
rine it was bitten. Another version of the same story is given by ^lian 
(De Nat. Animal, i. Ivii.). 

' Keyser's Religion of the Northmen, Pennock's Translation, p. 259. 
The extreme simplicity of the skirsla finds its counterpart in modern times 
in the ordeal of the staff, as used in the Ardennes and described hereafter. 

2 First Text of Pardessus, Tit. liii. Ivi. 

3 Decret. Tassilon. Tit. ii. \ 7. 



THE BARBARIANS. 24I 

was the final resort in all prosecutions for murder, theft, and 
false accusation.^ 

As the Barbarians established themselves on the ruins of 
the Roman Empire and embraced Christianity they, with 
one exception, cultivated the institution of the ordeal with 
increased ardor. This exception is found in the Gothic 
nations, and is ascribable, as we have seen when treating of 
the judicial combat, to the influence of the Roman customs 
and laws which they adopted. For nearly two centuries 
after their settlement, there is no allusion in their body of 
laws to any form of ordeal. It was not until 693, long after 
the destruction of their supremacy in the south of France, 
and but little prior to their overthrow in Spain by the Sara- 
cens, that King Egiza, with the sanction of a Council of To- 
ledo, issued an edict commanding the employment of the 
ceneum or ordeal of boiling water.^ 

Various causes were at work among the other tribes to 
stimulate the favor with which the ordeal was regarded. As 
respects the wager of battle I have already traced its career 
as a peculiarly European form of the Judgment of God, 
which was fostered by the advantage which it gave, in the 
times of nascent feudalism, to the bold and reckless. With 
regard to the other forms, one reason for their increased 
prevalence is doubtless to be found in the universal principle 
of the Barbarians, in their successive settlements, to allow all 
races to retain their own jurisprudence, however much indi- 
viduals might be intermingled, socially and politically. The 
confusion to which this gave birth is well set forth by St. 
Agobard, when he remarks that frequently five men shall 
be found in close companionship, each one owning obedience 
to a different law. He also states that under the Burgundian 
rules of procedure, no one was allowed to bear witness 

J Annal. Saxo ann. 1039. — Ruskaia Prawda, art. 28 (Esneaux, Hist, 
de Russie, I. 181), 

2 L. Wisigoth. VI. i. 3. 
21 



242 THE ORDEAL. 

against a man of different race/ Under these circumstances, 
in a large proportion of cases there could be no legal evi- 
dence attainable, and recourse was had of necessity to the 
Judgment of God. Even where this rule was not in force, a 
man who appealed to Heaven against the testimony of a 
witness of different origin would be apt to find the court dis- 
posed to grant his request. If the judge, moreover, was a 
compatriot of one of the pleaders, the other would naturally 
distrust his impartiality, and would prefer to have the case 
Gccided by the Omniscient whose direct interposition he was 
taught to regard as undoubted. That the assumed fairness 
of the ordeal was highly prized under such circumstances 
we have evidence in the provisions of a treaty between the 
Welsh and the Saxons, about the year looo, according to 
which all questions between individuals of the two races 
were to be settled in this manner, in the absence of a special 
agreement between the parties.^ 

The most efficient cause of the increased use of the or- 
deal was, however, to be found in the church. With her 
customary tact, in converting the Barbarians, she adopted 
such of their customs as she could adapt to Christian belief 
and practice ; and she accepted the ordeal as an undoubted 
appeal to God, whose response was regarded as unquestion- 
able, warrant being easily found for this in the Jewish prac- 
tices already described. The pagan ceremonies were 
moulded into Christian rites, and the most solemn forms of 
religion were thrown around the rude expedients invented 
thousands of years before by the Bactrian nomads. The 
administration of the ordeal being thus reserved for priestly 
hands, the church acquired a vastly increased influence as 
the minister of justice, to say nothing of the revenues thence 
arising, and the facility with which ecclesiastics could thus 
defend themselves when legally assailed by their turbulent 

> Lib. adv. Leg. Gundobadi iv. vi. 

2 Senatus Consult, de Monticolis Walise c. ii. 



FAVORING INFLUENCE OF THE CHURCH. 243 

flocks. We are not without evidence of the manner in which 
the church thus favored the use of this Christianized pagan- 
ism, and introduced it along with Christianity among peoples 
to whom it was previously unknown. Thus among the 
Turanian Majjars, the laws of King Stephen, promulgated in 
toi6, soon after his conversion, contain no allusion to the 
ordeal, but in those of Ladislas and Coloman, issued towards 
the end of the century, it is found, in its various forms, 
thoroughly established as a means of legal proof. ^ So, when 
in the twelfth century, Bishop Geroldus converted the Slavs 
of Mecklenburg, they were at once forbidden to settle ques- 
tions by oaths taken on trees, fountains, and stones, as be- 
fore, but were required to bring their criminals before the 
priest to be tried by the hot iron or ploughshares.'^ Under 
the Crusaders, the ordeal was carried back towards the 
home of its birth, even contaminating the Byzantine civiliza- 
tion, and various instances of its use are related by the histo- 
rians of the Lower Empire to a period as late as the middle 
of the fourteenth century. 

The ingenuity of the church and the superstition of the 
people increased somewhat the varieties of the ordeal which 
we have seen employed in the East. Besides the judicial 
combat, the modes by which the will of Heaven was ascer- 
tained may be classed as the ordeal of boiling water, of red- 
hot iron, of fire, of cold water, of the balance, of the cross, 
of the corsnoed ox swallowing bread or cheese, of the Eucha- 
rist, of the lot. Bier-right, oaths on relics, and poison ordeals. 
In some of these, it will be seen, a miraculous interposition 
was required for an acquittal, in others for a condemnation ; 
some depended altogether on volition, others on the purest 
chance ; while others, again, derived their power from the 
influence exerted over the mind of the patient. 

1 Batthyani Leg. Eccles. Hung. T. I. pp. 439, 454. 

2 Anon. Chron. Slavic, cap. xxv. (S. R. German, Septent. Lindenbrog. 
P- 215.) 



244 THE ORDEAL. 



BOILING WATER. 



The ordeal of boiling water {ceneitni, judicium aquce fer- 
ventis, cacabus, caldaria) is the one usually referred to in 
the most ancient texts of laws. It was a favorite both with 
the secular and ecclesiastical authorities, and the manner in 
which the pagan usages of the ancient Aryans were adopted 
and rendered orthodox by the church is well illustrated by 
the commendation bestowed on it by Hincmar in the ninth 
century. It combines, he says, the elements of water and 
of fire : the one representing the deluge — the judgment in- 
flicted on the wicked of old; the other authorized by the 
fiery doom of the future — the day of judgment, in both of 
which we see the righteous escape and the wicked suffer.^ 
There were several minor variations in its administration, 
but none of them departed to any notable extent from the 
original form as invented in the East. A caldron of water 
was brought to the boiling-point, and the accused was 
obliged with his naked hand to find a small stone or ring 
thrown into it; sometimes the latter portion was omitted, 
and the hand was simply inserted, in trivial cases to the 
wrist, in crimes of magnitude to the elbow; the former being 
termed the single, the latter the triple ordeal ;^ or, again, 
the stone was employed, suspended by a string, and the 
severity of the trial was regulated by the length of the line, 
a palm's breath being counted as single, and the distance to 
the elbow as triple.^ A good example of the process, in all 
its details, is furnished us by Gregory of Tours, who relates 
that an Arian priest and a Catholic deacon, disputing about 
their respective tenets, and being unable to convince each 
other, the latter proposed to refer the subject to the decision 
of the ceneimif and the offer was accepted. Next morning 

• Hincmar. de Divert. Lothar. Interrog. VI. 

2 Dooms of King ^Ethelstan, iv. cap. 7. 

3 Adjuratio ferri vel aquse ferventis (Baluz. II. 655). 



BOILING WATER. 245 

the deacon's enthusiasm cooled, and he mingled his matins 
with precautions of a less spiritual nature, by bathing his arm 
in oil, and anointing it with protective unguents. The popu- 
lace assembled to witness the exhibition, the fire was lighted, 
the caldron boiled furiously, and a little ring thrown into 
it was whirled around like a straw in a tornado, when the 
deacon politely invited his adversary to make the trial first. 
This was declined, on the ground that precedence belonged 
to the challenger, and with no little misgiving the deacon 
proceeded to roll up his sleeve, when the Arian, observing 
the precautions that had been taken, exclaimed that he had 
been using magic arts, and that the trial would amount to 
nothing. At this critical juncture, when the honor of the 
orthodox faith was trembling in the balance, a stranger 
stepped forward — a Catholic priest named Jacintus, from 
Ravenna — and offered to undergo the experiment. Plung- 
ing his arm into the bubbling caldron, he was two hours in 
capturing the ring, which eluded his grasp in its fantastic 
gyrations ; but finally, holding it up in triumph to the ad- 
miring spectators, he declared that the water felt cold at the 
bottom, with an agreeable warmth at the top. Fired by the 
example, the unhappy Arian boldly thrust in his arm; but 
the falseness of his cause belied the confidence of its rash 
supporter, and in a moment the flesh was boiled off the 
bones up to the elbow. ^ 

This was a volunteer experiment. As a means of judicial 
investigation, the church, in adopting it with the other or- 
deals, followed the policy of surrounding it with all the 
solemnity which her most venerated rites could impart, thus 
imitating, no doubt unconsciously, the customs of the 
Hindus, who, from the earliest times, have made the ordeal 
a religious ceremony, to be conducted by Brahmans, with 
invocations to the divine powers, and to be performed by 

I De Gloria Martyrum Lib. i. cap, 81. — Injecta manu, protinus usque 
ad ipsa ossium internodia caro liquefacta defluxit. 



246 THE ORDEAL. 

the patient at sunrise, immediately after the prescribed ablu- 
tions, and while yet fasting.^ With the same object, in the 
European ordeal, fasting and prayer were enjoined for three 
days previous, and the ceremony commenced with special 
prayers and adjurations, introduced for the purpose into the 
litany, and recited by the officiating priests ; mass was cele- 
brated, and the accused was required to partake of the sacra- 
ment under the fearful adjuration, "This body and blood of 
our Lord Jesus Christ be to thee this day a manifestation !" 
This was followed by an exorcism of the water, of which 
numerous formulas are on record, varying in detail, but all 
manifesting the robust faith with which man assumed to con- 
trol the action of his Creator. A single specimen will suffice. 

" O creature of water, I adjure thee by the living God, by 
the holy God who in the beginning separated thee from the 
dry land ; I adjure thee by the living God who led thee from 
the fountain of Paradise, and in four rivers commanded thee 
to encompass the world ; I adjure thee by Him who in Cana 
of Galilee by His will changed thee to wine, who trod on 
thee with His holy feet, who gave thee the name Siloa; I 
adjure thee by the God who in thee cleansed Naaman, the 
Syrian, of his leprosy; — saying, O holy water, O blessed 
water, water which washest the dust and sins of the world, I 
adjure thee by the living God that thou shalt show thyself 
pure, nor retain any false image, but shalt be exorcised 
water, to make manifest and reveal and bring to naught all 
falsehood, and to make manifest and bring to light all truth; 
so that he who shall place his hand in thee, if his cause be 
just and true, shall receive no hurt; but if he be perjured, 
let his hand be burned with fire, that all men may know the 
power of our Lord Jesus Christ, who will come, with the 
Holy Ghost, to judge with fire the quick and the dead, and 
the world! Amen !"^ 

After the hand had been plunged in the seething caldron, 
it was carefully enveloped in a cloth, sealed with the signet 

1 Yajnavalkya (Asiatic Researches, I. 402). 

2 Formulae Exorcismorum, Baluz. II. 639 sqq. Various other formulas 
are given by Baluze, Spelman, Muratori, Goldast, and other collectors, 
all manifesting the same unconscious irreverence. 



BOILING WATER. 24-7 

of the judge, and three days afterwards it was unwrapped, 
when the guilt or innocence of the party was announced by 
the condition of the member.^ 

The justification of this mode of procedure by its most 
able defender, Hincmar, Archbishop of Rheims, is similar 
in spirit to this form of adjuration. King Lothair, great- 
grandson of Charlemagne, desiring to get rid of his wife, 
Teutberga, accused her of the foulest incest, and forced her 
to a confession, which she afterwards recanted, proving her 
innocence by undergoing the ordeal of hot water by proxy. 
Lothair, nevertheless, married his concubine, Waldrada, and 
for ten years the whole of Europe was occupied with the dis- 
gusting details of the quarrel, council after council assem- 
bling to consider the subject, and the thunders of Rome 
being freely employed. Hincmar, the most conspicuous 
ecclesiastic of his day, stood boldly forth in defence of the 
unhappy queen, and in his treatise ''De Divortio Lotharii et 
Teutbergse," although no one at the time seriously thought 
of impugning the authority of ordeals in general, it suited 
his purpose to insist upon their claims to infallibility. His 
line of argument shows how thoroughly the pagan custom 
had become Christianized, and how easily the churchman 
could find reasons for attributing to God the interposition 
which his ancestors had ascribed to Mithra, or to Agni, or 
to Thor. "Because in boiling water the guilty are scalded 
and the innocent are unhurt, because Lot escaped unharmed 
from the fire of Sodom, and the future fire which will pre- 
cede the terrible Judge will be harmless to the Saints, and 
will burn the wicked as in the Babylonian furnace of old. "^ 

1 Doom concerning hot iron and water (Laws of ^thelstan, Thorpe, I. 
226); Baluze, II. 644. 

2 " Quia in aqua ignita coquuntur culpabiles et innoxii liberantur in- 
cocti, quia de igne Sodomitico Lot Justus evasit inustus, et futurus ignis 
qui prseibit terribilem judicem, Sanctis erit innocuus et scelestos aduret, ut 
olim Babylonica fornax, quse pueros omnino non contigit." — Intenog. vi. 



248 THE ORDEAL. 

In the Life of St. Ethelwold is recorded a miracle, which, 
though not judicial, yet, from its description by a contem- 
porary, affords an insight into the credulous faith which 
rendered lawgivers ready to intrust the most important inter- 
ests to decisions of this nature. The holy saint, while Abbot 
of Abingdon, to test the obedience of Elfstan the cook of the 
monastery, ordered him to extract with his hand a piece of 
meat from the bottom of a caldron in which the conventual 
dinner was boiling. Without hesitation the monk plunged 
his hand into the seething mass and unhurt presented the 
desired morsel to his wondering superior. Faith such as 
this could not go unrewarded, and Elfstan, from his humble 
station, rose to the episcopal seat of Winchester.^ 

This form of trial was in use among all the races in whose 
legislation the purgatio vulgaris found place. It is the only 
mode alluded to in the Salic Law, from the primitive text to 
the amended code of Charlemagne.^ The same may be 
said of the Wisigoths, as we have already seen; while the 
codes of the Frisians, the Anglo-Saxons, and the Lombards, 
all refer cases to its decision.^ In Iceland, it was employed 
from the earliest times;* in the primitive jurisprudence of 
Russia its use was enjoined in cases of minor importance, ° 
and it continued in vogue throughout Europe until the gene- 
ral discredit attached to this mode of judgment led to the 
gradual abandonment of the ordeal as a legal process. It is 
among the forms enumerated in the sweeping condemnation 
of the whole system, in 1215, by Innocent III. in the Fourth 
Council of Lateran; but even subsequently we find it pre- 
scribed in certain cases by the municipal laws in force 

' Vit. S. ^thelwoldi c. x. (Chron. Abingd. II. 259. M. R. Series.) 

2 First text of Pardessus, Tit. liii., Ivi. ; MS. Guelferbyt. Tit. xiv., xvi. ; 
L. Emend. Tit. lv.,lix. 

3 L. Frision. Tit. iii. ; L. ^thelredi iv. \ 6; L. Lombard. Lib. i. Tit. 
xxxiii. \ I. 

4 Gnigas, Sect. vi. cap, 55. 

5 Ruskaia Prawda, Art. 28. 



BOILING WATER. 249 

throughout the whole of Northern and Southern Germany/ 
and as late as 1282 it is specified in a charter of Gaston of 
Beam, conferring on a church the privilege of holding or- 
deals.^ At a later date, indeed, it was sometimes adminis- 
tered in a different and more serious form, the accused being 
expected to swallow the boiling water. I have met with no 
instances recorded of this, but repeated allusions to it by 
Rickius show that it could not have been unusual.^ 

The modern Hindoo variety of this ordeal consists in 
casting a piece of gold or a metal ring into a vessel of boil- 
ing ^-^<?(?, or sesame oil, of a specified size and depth. Sacri- 
fices are offered to the gods, a mantra, or Vedic prayer is 
uttered over the oil, which is heated until it burns a fresh 
peepul leaf, and if the person on trial can extract the ring 
between his finger and thumb, without scalding himself, he 
is pronounced victorious.* In 1783 a case is recorded as 
occurring at Benares, in which a Brahman accused a linen- 
painter of theft, and as there was no other way of settling 
the dispute, both parties agreed to abide by the result of the 
ordeal. At that time the East India Company was endeavor- 
ing to discountenance this superstition, but could not venture 
to forcibly abolish it, and as persuasion was unavailing the 
accused was allowed to undergo the experiment, which re- 
sulted in his conviction. Not much confidence, however, 
seems to have been felt in the trial, as the fine incurred by 
him was not enforced.^ Of course, under the influence of 
English rule, this and all other ordeals are legally obsolete, 
but the popular belief in them is not easily eradicated. So 

' Jur. Provin. Saxon. Lib. I. art. 39; Jar. Provin. Alamann. cap. 
xxxvii, ^1 15, 16. 

2 Du Cange. ^ Defens. Probse Aquae Frigid. g| 167, 169, &c. 

4 Ayeen Akbery, II. 498. This work was written about the year 1600 
by Abulfazel, vizier of the Emperor Akbar. Gladwin's Translation was 
published under the auspices of the East India Company in 1800. See 
also AH Ibrahim Khan, in Asiatic Researches, I. 398. 

5 Ali Ibrahim Khan, loc. cit. 



250 THE ORDEAL. 

late as 1867 the Bombay Gazette records a case occurring at 
Jamnuggur, when a camel-driver named Chakee Soomar, 
under whose charge a considerable sum of money was lost, 
was exposed by a local official to the ordeal of boiling oil. 
The authorities, however, took prompt measures to punish 
this act of cruelty. The ''karbharee" who ordered it 
escaped chastisement by opportunely dying, but the owner 
of the treasure, who had urged the trial, was condemned to 
pay to the camel driver a pension of 100 rupees during life. 
In 1868, the Madras Times chronicled an attempt to revive 
the practice among the Brahmans of Travancore. About 
thirty years ago it was abolished by the British authorities, 
but previous to that time it was performed by placing a small 
silver ball in a brazen vessel eight inches deep, filled with 
boiling ghee. After various religious ceremonies, the ac- 
cused plunged in his hand, and sometimes was obliged to 
repeat the attempt several times before he could bring out 
the ball. The hand was then wrapped up in tender palm 
leaves and examined after an interval of three days. In 
1866 some Brahmans in danger of losing caste endeavored 
to regain their position by obtaining permission to undergo 
a modification of this trial, substituting cold oil for boiling 
ghee. The authorities made no objection to this, but the 
holy society refused to consider it a valid purgation. 

Christian faith improved on the simplicity of pagan de- 
vices, and was able, through the intermediation of men of 
supreme sanctity, to induce Heaven to reverse the ordinary 
form of the hot-water ordeal. D'Achery quotes from a 
contemporary MS. life of the holy Ponce, Abbot of Anda- 
one near Avignon, a miracle which relates that one morning 
after mass, as he was about to cross the Rhone, he met two 
men quarrelling over a ploughshare, which, after being lost 
for several days, had been found buried in the ground, and 
which each accused the other of having purloined and hid- 
den. As the question was impenetrable to human wisdom, 
Ponce intervened and told them to place the ploughshare in 



BOILING WATER. 251 

the water of the river, within easy reach. Then, making 
over it the sign of the cross, he ordered the disputant who 
was most suspected to lift it out of the river. The man ac- 
cordingly plunged his arm into the stream only to withdraw 
it, exclaiming that the water was boiling, and showed his 
hand fearfully scalded, thus affording the most satisfactory 
evidence of his guilt.^ St. Bertrand, Bishop of Comminges, 
adopted a similar method in a case of disputed paternity. A 
poor woman came to him with a starving infant, whom the 
father refused to recognize or provide for, lest such evidence 
of sin should render him ineligible for an ecclesiastical bene- 
fice. The bishop summoned the offender, who stoutly de- 
nied the allegation, until a vessel of cold water was brought 
and a stone thrown in, when the bishop blessed the water, 
and ordered the father to take out the stone, saying that the 
result would show the truth or falsity of his asseverations. 
Full of confidence, the man plunged in his hand and brought 
out the stone, with his hand scalded as though the water had 
been boiling. He promptly admitted his guilt, acknowledged 
the child, and thenceforth provided for it.^ Similar to this 
was the incident which drove the holy St. Gengulphus from 
the world. While yet a warrior and favorite of King Pepin, 
during his travels in Italy he was attracted by a way-side 
fountain, and bought it from the owner, who imagined that 
it could not be removed from his possessions. On his return 
to France, Gengulphus drove his staff into the ground near 
his house, in a convenient place, and on its being withdrawn 
next day, the obedient stream, which had followed him from 
Italy, burst forth. He soon learned that during his absence 
his wife had proved unfaithful to him with a priest, and de- 
siring to test her innocence, he took her to the fountain and 
told her that she could disprove the reports against her by 

' D'Achery, Not. 119 ad 0pp. Guibert. Noviogent. 
2 Vit. S. Bertrandi Convenar, No. 15 (Martene Ampliss. Collect. VI. 
1029-30). 



252 THE ORDEAL. 

picking up a hair which lay at the bottom at the pool. She 
boldly did this, but on withdrawing her hand it was fear- 
fully scalded, the skin and flesh hanging in strips from her 
finger ends. He pardoned her and retired from the world, 
but she was implacable, and took her revenge by inciting 
her paramour to murder him.^ 

RED-HOT IRON. 

In almost all ages there has existed the belief that under 
the divine influence the human frame was able to resist the 
action of fire. Even the sceptic Pliny seems to share the 
superstition as to the families of the Hirpi, who at the 
annual sacrifice made to Apollo, on Mount Soracte, walked 
without injury over piles of burning coals, in recognition of 
which, by a perpetual senatus consultum, they were relieved 
from all public burdens.^ That fire applied either directly 
or indirectly should be used in the appeal to God was there- 
fore natural, and the convenience with which it could be 
used by means of iron rendered that the most usual form of 
the ordeal. As employed in Europe, under the name of 
judicium ferri or juise it was administered in two essentially 
different forms. The one {vomeres igniti, exarnen pedale) 
consisted in laying on the ground at certain distances six, 
nine, or in some cases twelve, red-hot ploughshares, among 
which the accused walked barefooted, sometimes blindfolded, 
when it became an ordeal of pure chance, and sometimes 
compelled to press each iron with his naked itQt.^ The 

' Pet. Cantor. Verb, Abbrev. Not. in cap, ixxviii. (Migne's Patrol. T. 
205, p. 471.) 

2 Natur. Plistor. L. vil. c. 2. 

3 " Si titubaverit, si singulos vomeres pleno pede non presserit, si quan- 
tulumcunque laesa fuerit, sententia proferatur." — Annal. Winton. Eccles. 
(Du Cange, s. v. Vomeres.') Six is the number of ploughshares specified 
in the celebrated trial of St. Cunigunda, wife of the emperor St. Henry 
II, (Mag, Chron, Belgic) Twelve ploughshares are prescribed by the 
Swedish law. (Legg. Scan. Provin. Lib, vii. c. 99. Ed. Thorsen. p. 
170.) 



RED-HOT IRON. 253 

Other and more usual form obliged the patient to carry in his 
hand for a certain distance, usually nine feet, a piece of red- 
hot iron, the weight of which was determined by law and 
varied with the importance of the question at issue or the 
magnitude of the alleged crime. Thus, among the Anglo- 
Saxons, in the "simple ordeal" the iron weighed one pound, 
in the ''triple ordeal" three pounds. The latter is pre- 
scribed for incendiaries and "morth-slayers" (secret mur- 
derers), for false coining, and for plotting against the king's 
life ; while at a later period, in the collection known as the 
Laws of Henry I., we find it extended to cases of theft, rob- 
bery, arson, and felonies in general.^ In Sweden, for theft, 
the form known as trux tarn was employed, in which the 
accused had to carry the red-hot iron and deposit it in a hole 
twelve paces from the starting-point; in other cases the 
ordeal was called 'scuz iarn, when he carried it nine paces 
and then cast it from him. These ordeals were held on 
Wednesday, after fasting on bread and water on Monday 
and Tuesday ; the hand or foot was washed, after which it 
was allowed to touch nothing till it came in contact with the 
iron; it was then wrapped up and sealed until Saturday, 
when it was opened in presence of the accuser and the 
judges.'^ In Spain, the iron had no definite weight, but was 
a palm and two fingers in length, with four feet, high enough 
to enable the criminal to lift it conveniently.^ The episcopal 
benediction was necessary to consecrate the iron to its judi- 
cial use. A charter of 1082 shows that the Abbey of Fon- 
tanelle in Normandy had one of approved sanctity, which, 
through the ignorance of a monk, was applied to other pur- 
poses. The Abbot thereupon^ asked the Archbishop of 
Rouen to consecrate another, and before the latter would 

' Legg yEthelstan. iv. g 6 ; ^theldred. iii. ^ 7 ; Cnut. Secular. § 58 ; 
Ilenrici I. Ixvi. 9. 

2 Legg. Scan. Provin. Lib. vii. c. 99. (Ed. Thorsen, pp. 170-2.) 

3 Fuero de Bae^a, ap. Villadiego, Fuero Juzgo, fol. 3i7rt. 

22 



254 THE ORDEAL. 

consent, the institution had to prove its right to administer 
the ordeal.^ The wrapping np and sealing of the hand was 
a general custom, derived from the East, and usually after 
three days it was uncovered and the decision was rendered 
in accordance with its condition.^ These proceedings were 
accompanied by the same solemn observances which have 
been already described, the iron itself was duly exorcised, 
and the intervention of God was invoked in the name of all 
the manifestations of Divine clemency or wrath by the agency 
of fire — Shadrach, Meshach, and Abednego, the burning 
bush of Horeb, the destruction of Sodom, and the day of 
judgment.^ Occasionally, when several criminals were ex- 
amined together, the same piece of heated iron was borne 
by them successively, giving a manifest advantage to the last 
one, who had to endure a temperature considerably less than 
his companions.* 

In the seventh century, Hiouen Thsang reports that in 
India the red-hot iron was applied to the tongue of the ac- 
cused as well as to the palms of his hands and the soles of 
his feet, his innocence being designated by the amount of 
resultant injury.^ This may have been a local custom, for, 
according to the code of Yajnavalkya which has been in 
force for nearly two thousand years, the patient bathes and 
performs certain religious ceremonies; then after rubbing his 
hands with rice bran, seven green peepul leaves, seven jend 
leaves, seven blades of dharba grass, and some barley moist- 
ened with curds are placed on the extended palms and bound 
round seven times with raw silk. He then invokes the fire : 

1 Du Cange, s. v. Ferj'tan candens. 

2 Laws of Ethelstan, iv. \ 7. — Adjuratio ferri vel aquae fervenlis (Baliiz. 
II. 656). — Fuero de Baeca (ubi sup.). 

3 For instance, see various forms of exorcism given by Baluze, II. 651- 
654. Also Dom Gerbert (Patrologise CXXXVIII. 1127); Goldast. Ala- 
mann. Antiquitat. T. 11. p. 150 (Ed. Senckenberg). 

* Petri Cantor. Verb. Abbreviat. cap. Ixxviii. (Patrol. CCV. 233). 
5 Travels of Hiouen Thsang (Wheeler, Hist, of India, HI. 262). 



RED-HOT IRON. 255 

^^Thoii, O Fire! pervadest all beings; O cause of purity, 
who givest evidence of virtue and of sin, declare the truth 
in this my hand!" A red-hot iron ball or spear-head, 
weighing about two pounds and three-quarters, is then 
placed on his hands, and with this he has to walk across 
seven concentric circles of cow-dung, each with a radius 
sixteen fingers' breadth larger than the preceding, and throw 
the ball into a ninth circle where it must burn some grass 
placed there for the purpose. If this be accomplished with- 
out burning the hands, he gains his cause. A minimum limit 
of a thousand pieces of silver was established at an early 
period as requisite to justify the administration of this form 
of ordeal in a suit.^ Ali Ibrahim Khan relates a case which 
he witnessed at Benares in 1783 in which a man named San- 
car, accused of larceny, offered to be tried in this manner. 
The court deliberated for four months, urging the parties to 
adopt some other mode, but they were obstinate, and being 
both Hindus claimed their right to the ancient forms of law, 
which was at last conceded. The ordeal took place in pre- 
sence of a large assemblage, when, to the surprise of every 
one, Sancar carried the red-hot ball through the seven cir- 
cles, threw it duly into the ninth where it burnt the grass, 
and exhibited his hands uninjured. By way of discouraging 
such experiments for the future, the accuser was imprisoned 
for a week.^ Even in 1873, the Bombay Gazette states that 
this ordeal is still practised in Oodeypur, where a case had 
shortly before occurred wherein a husbandman had been 
obliged to prove his innocence by holding a red-hot plough- 
share in his hands, duly guarded with peepul leaves, turning 
his face towards the sun and invoking it: *'Thou Sun-God, if 
I am actually guilty of the crime, punish me; if not, let me 
escape unscathed from the ordeal!" — and in this instance, 
also, the accused was uninjured. 

' Ayeen Akbery, II. 497. — Yajnavalkya (Asiatic Researches, I. 403). 
2 Asiatic Researches, I. 395. 



256 THE ORDEAL. 

A peculiar modification of the hot-iron ordeal is employed 
by the aboriginal hill-tribes of Rajmahal, in the north of 
Bengal, when a person believes himself to be suffering from 
witchcraft. The Satane and the Cherreen are used to find 
out the witch, and then the decision is confirmed by a per- 
son representing the sufferer, who, with certain religious 
ceremonies, applies his tongue to a red-hot iron nine times, 
unless sooner burnt. A burn is considered to render the 
guilt of the accused indubitable, and his only appeal is to 
have the trial repeated in public, when, if the same result 
follows, he is bound either to cure the bewitched person or 
to suffer death if the 1-atter dies.* 

In the earlier periods of European law, the burning iron 
was reserved for cases of peculiar atrocity. Thus we find it 
prescribed by Charlemagne in accusations of parricide;^ the 
Council of Risbach in 799 directed its use in cases of sorcery 
and witchcraft;^ and among the Thuringians it was ordered 
for women suspected of poisoning or otherwise murdering 
their husbands* — a crime visited with peculiar severity in 
almost all codes. Subsequently, however, it became rather 
an aristocratic procedure, as contradistinguished from the 
water ordeals, as stated by Home, a legal writer of the reign 
of Edward 11.^ This nevertheless was not universal, for both 
kinds were employed indiscriminately by the Anglo-Saxons,^ 
and at a later period throughout Germany;^ while in the 

' Lieut. Shaw, in Asiatic Researches, IV. 69. 

2 Capit. Carol. Mag. ii. Ann. 803, cap. 5. 

3 Concil. Risbach. can, ix. (Hartzheim Concil. German, II, 692.) 
* L. Anglior. et Werinor. Tit. xiv. 

5 Apres les serements des parties soloit Ion garder la partie, et liiy porter 
a la maine une piece de fer flambant sil fuit frank home, ou de mettre le 
main ou la pie en eaw boillant s'il ne fuit frank. — Myrror of Justice, cap, 
III. sect. 23, 

6 Laws of Ethelred. iv. \ 6 — where the accuser had the right to select 
the mode in which the ordeal should be administered. 

' The Jus Provin. Alaman. (Cap. xxxvii. W 15, 16; Cap. clxxxvi. W 
4, 6, 7 ; Cap. ccclxxiv. ) allows thieves and other malefactors to select the 



RED-HOT IRON. 257 

Assises de Jerusalem the hot iron is the only form alluded to 
as employed in the rotiirier qomxX.'^-^ in the laws of Nieuport, 
granted by Philip of Alsace in 1163, it is prescribed as a 
plebeian ordeal;^ about the same period, in the military laws 
enacted by Frederic Barbarossa during his second Italian 
expedition, it appears as a servile ordeal;^ and as early as 
848 the Council of Mainz indicates it especially for slaves.* 
In the Russian law of the eleventh century, it is ordered in 
all cases where the matter at stake amounts to more than 
half 2. grivna of gold, while the water ordeal is reserved for 
suits of less importance.^ In the Icelandic code of the 
twelfth century it is prescribed for men, in cases in which 
women are required to undergo the hot-water ordeal.^ 

Irrespective of these distinctions, we find it to have been 
the mode usually selected by persons of rank when com- 
pelled to throw themselves upon the judgment of God. The 
Empress Richarda, wife of Charles-le-Gros, accused in 887 
of adultery with Bishop Liutward, offered to prove her inno- 
cence either by the judicial combat or the red-hot iron.^ So 
when the Emperor St. Henry II. indulged in unworthy 
doubts of the purity of his virgin-wife St. Cunigunda, she 
eagerly appealed to the judgment of God, and established 
her innocence by treading unharmed the burning plough- 
shares.^ The tragical tradition of Mary, wife of the Third 

ordeal they prefer. The Jus Provin. Saxon, (Lib, i. Art, 39) affords them 
in addition the privilege of the duel, 

J Baisse Court, Cap, 132, 261, 279, 280, etc, 

2 Ixsbroussart's Oudegherst, II, 707. 

3 Radevic. de Reb. Frid, Lib, I, cap, xxvi. 

■1 " Si Presbyterum occidit ... si liber est, cum xii. juret ; si autem 
servus, per xii, vomeres ferventes se expurget," Concil. Mogunt. ann. 
848, can. xxiv. That of Tribur, however, in 895, prescribes it for men of 
rank, "fidelis libertate notabilis," — Concil, Tribur. c. xxii. 

5 Rouskaia Prawda, Art, 28. 

6 Gragas, Sect, vi. c. Iv. 

7 Regino. ann. 886, — Annales Metenses. 

^ Vit. S. Kunegundse cap 2. (Ludewig Script, Rer, German, I. 346-7.) 

22* 



25B THE ORDEAL. 

Otho, contains a similar example, with the somewhat unu- 
snal variation of an accuser undergoing an ordeal to prove a 
charge. The empress, hurried away by a sudden and un- 
conquerable passion for Amula, Count of Modena, in 996, 
repeated in all its details the story of Potiphar's wife. The 
unhappy count, unceremoniously condemned to lose his 
head, asserted his innocence to his wife, and entreated her 
to clear his reputation. He was executed, and the countess, 
seeking an audience of the emperor, disproved the calumny 
by carrying unharmed the red-hot iron, when Otho, con- 
vinced of his rashness by this triumphant vindication, imme- 
diately repaired his injustice by consigning his empress to 
the stake. -^ When Edward the Confessor, who entertained 
a not unreasonable dislike for his mother Emma, listened 
eagerly to the accusation of her criminal intimacy with 
Alwyn, Bishop of Winchester, she was condemned to un- 
dergo the ordeal of the burning shares, and, walking over 
them barefooted and unharmed, she established beyond per- 
adventure the falsehood of the charge.^ So when in 943 

• Gotfridi Viterbiensis Pars xvil., "De Tertio Othoiie Imperatore." 
Siffridi Epit. Lib. I. ann. 998. Ricobaldi Hist. Impp. sub Ottone III. — 
The story is not mentioned by any contemporary authorities, and Muratori 
has well exposed its improbability (Annali d' Italia, ann, 996) ; although 
he had on a previous occasion argued in favor of its authenticity (Antiq. 
Ital. Dissert. 38). In convicting the empress of calumny, the Countess of 
Modena appeared as an accuser, making good the charge by the ordeal ; 
but if we look upon her as simply vindicating her husband's character, the 
case enters into the ordinary course of such affairs. Indeed, among the 
Anglo-Saxons, there was a special provision by which the friends of an 
executed criminal might clear his reputation by undergoing the triple or- 
deal, after depositing pledges, to be forfeited in cases of defeat (Etheh-ed, 
iii. g 6), just as in the burgher law of Northern Germany a relative of a 
dead man might claim the duel to absolve him from an accusation. (Sach- 
sische Weichbild, art. Ixxxvii.) This was not mere sentiment, as in 
crimes involving confiscation the estate of the dead man was at stake. 

2 Rapin, Hist. d'Angleterre, I. 123 — Giles states (note to William of 
Malmesbury, ann, 1043) that Richard of Devizes is the earliest authority 
for this story. 



RED-HOT IRON. 259 

Arnoul of Flanders had procured the assassination of William 
Longsword, Duke of Normandy, at Pecquigny, he offered 
to Louis d'Outremer to clear himself of complicity in the 
murder by the ordeal of fire.'^ Robert Curthose, son of 
William the Conqueror, while in exile during his youthful 
rebellion against his father, formed an intimacy with a pretty 
girl. Years afterwards, when he was Duke of Normandy, 
she presented herself before him with two likely youths, 
whom she asserted to be pledges of his former affection. 
Robert was incredulous; but the mother, carrying unhurt 
the red-hot iron, forced him to forego his doubts, and to 
acknowledge the paternity of the boys, whom he thenceforth 
ado'pted.^ Indeed this was the legal form of proof in cases 
of disputed paternity established by the Scandinavian legis- 
lation at this period,^ and in that of Spain a century later.* 
Remy, Bishop of Dorchester, when accused of treason 
against William the Conqueror, was cleared by the devotion 
of a follower, who underwent the ordeal of hot iron.^ In 
1 1 43, Henry I., Archbishop of Mainz, ordered its employ- 
ment, and administered it himself, in a controversy between 
the Abbey of Gerode and the Counts of Hirschberg. In 
the special charter issued to the abbey attesting the decision 
of the trial, it is recorded that the hand of the ecclesiastical 
champion was not only uninjured by the fiery metal, but was 
positively benefited by it.^ About the same period, Centulla 

' Dudon. S. Quintini Lib. iv. 

2 Order. Yitalis Lib. x. cap, 13. 

!* Grilgas, Sect. vi. cap. 45. Andreas of Lunden early in tlie 13th cen- 
tury speaks of it as formerly in vogue for these cases, but disused in his 
lime. (Legg. Scan. Provin. Ed. P. G. Thorsen, Kjobenhavn, 1853, p. 
no.) 

■* " E si alguna dixiere que prenada es dalguno, y el varon no la creyere, 
prenda fierro caliente ; e si quemada fuere, non sea creyda, mas si sana 
escapare del fierro, de el fijo al padre, e criel assi como fuero es." — Fuero 
de Bae^a (Villadiego, Fuero Juzgo, fol. 317a). 

5 Roger of Wendover, Ann. 1085. 

6 Gudeni Cod. Diplom. Mogunt. T. I. No. liii. 



26o THE ORDEAL. 

IV. of Beam caused it to be employed in a dispute with the 
Bishop of Lescar concerning the fine paid for the murder of 
a priest, the ecclesiastic, as usual, being victorious.^ The 
reward of the church for its faith in adopting these pagan 
customs was seen in the well-known case by which Bishop 
Poppo of Slesvick, in 962, succeeded in convincing and con- 
verting the Pagan Danes even as, three thousand years 
earlier, according to the Persian historians, Zoroaster con- 
vinced King Gushtashp of the truth of his revelation from 
Hormazd,^ and, within seven centuries, Adurabad converted 
the heretical Mazdeans. The worthy missionary, dining 
with King Harold Blaatand, denounced, with more zeal than 
discretion, the indigenous deities as lying devils. The king 
dared him to prove his faith in his God, and, on his assent- 
ing, caused next morning an immense piece of iron to be 
duly heated, which the undaunted Poppo grasped and car- 
ried around to the satisfaction of the royal court, displaying 
his hand unscathed by the glowing mass. The miracle was 
sufficient, and Denmark thenceforth becomes an integral 
portion of Christendom.^ Somewhat similar, except in its 
results, was a case in which a priest involved in a theological 
dispute with a Jew, and unable to overcome him in argument, 
offered to prove the divinity of Christ by carrying a burning 
brand in his naked hand. Invoking the name of Jesus, the 
faithful ecclesiastic drew the blazing wood from the fire and 
slowly carried it for a considerable distance, but though he 

' Mazure et Hatoulet, Fors cle Beam, p. xxxviii. 

2 Hyde Relig. Vet, Persar. cap. xxiv. (Ed. 1760, pp. 320-1). 

3 Widukindi Lib. ill. cap. 65. — Sigebert. Gemblac. Ann. 966. — Ditli- 
mari Chron, Lib. ii. cap. viii. — Saxo. Grammat. Hist. Danic. Lib. X. 
The annalists of Treves claim the merit of this for their archbishop Poppo, 
whose pontificate lasted from 1016 to 1047. Accoixling to their legend 
Poppo not only drew on an iron gauntlet heated to redness, but entered a 
fiery furnace clad only in a linen garment soaked in wax, which was con- 
sumed by the flames without injury to him. — Gest. Trevir. Archiep. cap. 
xvi. (Martene Ampliss. Collect. IV. 161.) 



RED-HOT IRON. 261 

triumphantly exhibited his hand unhurt, his obdurate antago- 
nist refused to be converted, alleging that the miracle was 
the result of magic. ^ In Norv.-ay, the sanctity of St. Olaf 
the King was attested in the same way, wlien he thought- 
lessly whittled a twig on Sunday, and his attention was 
respectfully called by one ot his courtiers to this violation of 
the sabbatical rules. By way of penance he collected the 
chips, placed them on the palm of one hand, and set fire to 
them, but after they had been reduced to ashes, to the sur- 
prise of the bystanders, his hand was found unharmed.''^ 

In fact, there was scarcely a limit to the credulity which 
looked for the constant interference of the divine power. 
About 1215 some heretics at Cambray were convicted by the 
hot iron and sentenced to the stake. One of them was of 
noble birtli, and on the way to the place of execution the 
priest who had conducted the proceedings exhorted him to 
repentance and conversion. The condemned man listened 
willingly, and commenced to confess his errors. As he 
proceeded, his hand commenced to heal, and when he had 
received absolution, there remained no trace of the burn. 
When he was called in turn to take his place at the stake, 
the priest interposed, saying that he was innocent, and, on 
examination of the hand, he was released. About the same 
time a similar occurrence is recorded at Strasbourg, where 
ten heretics had been thus convicted and condemned to be 
burnt, and one repenting at the last moment was cured of 
his burn, and was discharged. In this case, however, on 
his return to his house near the town, his wife upbraided 
him for his weakness in betraying the eternal truth to avoid 
a momentary sufferirg, and under her influence he relapsed. 
Immediately the burn on his hand reappeared, and a similar 
one took possession of his wife's hand, scorching both to the 

1 Guibert. Noviogent. de Iiicarnat. contra Judseos Lib. III. cap. xi. 
Guibert states that he had this from a Jew, who was an eye-witness of the 
fact. 

2 Legendae de S. Olavo (Langebek II. 548). 



262 THE ORDEAL. 

bone and inflicting such excruciating agony that being un- 
able to repress their screams, and fearing to betray them- 
selves, they took to the woods, where they howled like 
wolves. Concealment was impossible, however. They were 
discovered, carried to the city, where the ashes of their 
accomplices were not yet cold, and both promptly shared 
the same fate.^ 

No form of ordeal was more thoroughly introduced 
throughout the whole extent of Europe. From Spain to 
Constantinople, and from Scandinavia to Naples, it was 
appealed to with confidence as an unfailing mode of ascer- 
taining the will of Heaven. The term ''judicium," indeed, 
was at length understood to mean an ordeal, and generally 
that of hot iron, and in its barbarized form, " juise," may 
almost always be considered to indicate this particular kind. 
In the Swedish law of the 13th century, a person accused of 
murder on suspicion was always obliged to justify himself by 
carrying the hot iron for nine steps; and if he did not appear 
to stand his trial when duly summoned, he might be forced 
to undergo a preliminary ordeal to prove that he had been 
unavoidably detained. If he failed in this, he was con- 
demned as guilty, but if he succeeded in enduring it he was 
forced to perform the second ordeal to clear him of the 
crime itself; while the heir of the murdered man, so long as 
no one succumbed in the trial, could successively accuse ten 
men; for the last of whom, however, the nine burning 
ploughshares were substituted.^ In the code of the Frankish 
kingdoms of the East, it is the only mode alluded to, except 
the duel, and it there retained its legal authority long after 
it had become obsolete elsewhere. The Assises de Jerusa- 
lem were in force in the Venetian colonies until the sixteenth 
century, and the manuscript preserved officially in the arch- 
ives of Venice, described by Morelli as written in 1436, 
retains the primitive directions for the employment of the 

• Caesar. Heisterbach. Dial. INIirac. Dist. iii. c. xvi. xvii. • 
2 Legg. Scan. Provin. Lib. v. c. 57 (Ed. Thorsen, p. 139-40). 



RED-HOT IRON. 263 

jiiise} Even the Venetian translation, commenced in 15 31, 
and finished in 1536, is equally scrupulous, although an act 
of the Council of Ten, April 10, 1535, shows that these 
customs had fallen into desuetude and had been formally 
abolished.^ 

This ordeal even became partially naturalized among the 
Greeks, probably as a result of the Latin domination at Con- 
stantinople. In the middle of the thirteenth century, the 
Emperor Theodore Lascaris demanded that Michael Paleo- 
logus, who afterwards wore the imperial crown, should clear 
himself of an accusation in this manner; but the Archbishop 
of Philadelphia, on being appealed to, pronounced that it 
was a custom of the barbarians, condemned by the canons, 
and not to be employed except by the special order of the 
emperor.^ Yet George Pachyrnere speaks of the custom as 
one not uncommon in his youth, and he describes at some 
length the ceremonies with which it was performed.* 

In Europe, even as late as 1310, in the proceedings against 
the Order of the Templars, at Mainz, Count Frederic, the 
master preceptor of the Rhenish provinces, offered to sub- 
stantiate his denial of the accusations by carrying the red-hot 
iron.^ In Modena in 1329, in a dispute between the German 
soldiers of Louis of Bavaria and the citizens, the Germans 
'offered to settle the question by carrying a red-hot bar; but 
when the townsfolks themselves accomplished the feat, and 
triumphantly showed that no burn had been inflicted, the 
Germans denied the proof, and asserted that magic had been 
employed.^ 

• This text is given by Kausler, Stuttgard, 1839, together with an older 
one compiled for the lower court of Nicosia. 

2 Pardessus, Us et Coutumes de la Mer, I. 268 sqq. 

3 Du Cange, s. v. Fen^iim candens. 

4 Pachymeri Hist. Mich. Palaeol. Lib. I. cap, xii. 

° Raynouard, Monuments relatifs a la Condamn. des Chev. du Temple, 
p. 269. 

6 Bonif, de Morano Chron. Mutinense. — ap. Muratori Antiq. Ital. 
Diss. 38. 



264 THE ORDEAL. 

Though about this time it may be considerea to have dis- 
appeared from the ordinary proceedings of the secular courts, 
there was one class of cases in which its vitality still con- 
tinued for a century and a half. The mysterious crime of 
witchcraft was so difficult of proof that judicial ingenuity was 
taxed to its utmost to secure conviction, and the Devil was 
always ready to aid his followers and baffle the ends of jus- 
tice. The Inquisitor Sprenger, writing in 1487, therefore 
recommends that, when a witch cannot be forced to confess 
her guilt by either prayers or torture, she shall be asked 
whether she will undergo the ordeal of red-hot iron; to this 
she will eagerly assent, knowing that she can rely on the 
friendly assistance of Satan to carry her through it unscathed, 
and this readiness will be good evidence of her guilt. He 
warns inexperienced judges moreover not to allow the trial 
to take place, and thus afford to Satan the opportunity of 
triumph, and instances a case which occurred in 1484 before 
the Count of Furstenberg. A well known witch was arrested 
and tried, but no confession could be extorted from her by 
all the refinements of torture. Finally she offered to prove 
her innocence with the red-hot iron, and the Count being 
young and unwary accepted the proposal, sentencing her to 
carry it three paces. She carried it for six paces and offered 
to hold it still longer, exhibiting her hand uninjured. The 
Count was forced to acquit her, and at the time that Sprenger 
wrote she was still living, to the scandal of the faithful.^ 

After the judicial use of the red-hot iron had at last died 
out, the superstition on which it was based still lingered, and 
men believed that God would reverse the laws of nature to 
accomplish a special object. About 1670 Georg Frese, a 
merchant of Hamburg, distinguished for piety and probity, 
published an account, the truth of which was vouched for by 
many respectable eye-witnesses, stating that a friend of his 
named Witzendorff, who had bound himself to a young wo- 

1 Malleus Maleficar. Francof. 1580, pp. 523-31. 



RED-HOT IRON. 265 

man by terrible oaths, and then had proved false and caused 
her death, fell into a despairing melancholy. He accused 
himself of the sin against the Holy Ghost, declared that his 
salvation was impossible, and refused to hope unless he 
could see a miracle wrought in his behalf. Frese at length 
asked him what miracle he required, and on his replying 
that he must see that fire would not burn, the intrepid consoler 
went to a blazing fire, picked out the burning coals and also 
a red hot ring, which he brought to the sinner with uninjured 
hands and convinced him that he could be saved by repent- 
ance. The moral drawn from the facts by the narrator to 
whom we owe them, is that he who under Divine influence 
undertakes such ordeals will be preserved unharmed.^ 

Even as we have seen that Heaven sometimes interposed 
to punish the guilty by a reversal of the hot- water ordeal, so 
the industrious belief of the Middle Ages found similar mi- 
racles in the hot-iron trial, especially when Satan or some 
other mysterious influence nullified the appeal to God. Early 
in the thirteenth century a case is related in which a peasant 
to revenge himself on a neighbor employed a vagabond 
monk to burn the house of the latter. The hot-iron ordeal 
was vainly employed on all suspected of the crime; the 
house was rebuilt, the monk, again bribed, burnt it a second 
time, and again the ordeal proved vain. The owner again 
rebuilt his house, and kept in it the ordeal-iron, ready for 
use. The monk, tempted with fresh promises, paid him 
another visit, and was hospitably received as before, when 
seeing the piece of iron, his curiosity was aroused and he 
asked what it was. The host handed it to him, explaining 
its use, but as soon as the wretch took it, it burned him to the 

' P. Burgmtister, who relates this in his thesis for the Doctorate (De 
Probat. per aquam, &c. Uhiige, 1 680), vigorously maintains the truth of 
the miracle against the assaults of a Catholic controversialist who impugned 
its authenticity. The affair seems to have attracted considerable attention 
at the time, as a religious question between the old church and the Lu- 
therans. 

23 



266 THE ORDEAL. 

bone, when the other seeing in him the incendiary, seized 
him; he was duly tried, confessed his guilt, and was broken 
on the wheel. ^ A variant of this story relates how a man 
accused of arson offered to prove his innocence by the red- 
hot iron, which he carried for a long distance and then showed 
his hand uninjured. The ordeal-iron mysteriously vanished 
and could not be found, until a year afterwards, when a 
laborer who was mending the highway came upon it under a 
layer of sand. It was still glowing fiercely, and when he 
attempted to pick it up, it burned him severely. The by- 
standers at once suspected him of the crime, and on the 
appropriate means being taken he was forced to confess his 
guilt, which was duly punished by the wheel. '^ A less tra- 
gical example of the same form of miracle was that wrought 
by the holy Suidger, Bishop of Munster, who suspected his 
chamberlain of the theft of a cup. As the man stoutly denied 
his guilt, Suidger ordered him to pick up a knife from the 
table, after he had mentally exorcised it. The cold metal 
burnt the culprit's hand as though it had been red hot, and 
he promptly confessed his crime. ^ 

ORDEAL OF FIRE. 

The ordeal of fire was sometimes administered directly, 
without the intervention of water or of iron ; and in this, its 
simplest form, it may be considered the origin of the pro- 
verbial expression, "J 'en mettrois la main au feu," as an 
affirmation of positive belief,'^ showing how thoroughly the 
whole system engrained itself in the popular mind. An 

• Caesar. Heisterb. Dial. Mirac. Dist, x. c. xxxvi. 

2 Godelmanni de Magis Lib. in. cap. v. § 19. 

3 Annalista Saxo ami. 993. 

* Thus Rabelais, " en mon aduiz elle est pucelle, toutesfoys ie nen vould- 
roys mettre mon doigt on feu" (Pantagruel, Lib. II. chap, xv.) ; and the 
Epist. Obscur. Virorum (P. ii. Epist. i) " Quamvis M. Bernhardus dice- 
ret, quod vellet disputare ad ignem quod haec est opinio vestra." 



ORDEAL OF FIRE. 267 

anticipation of it may be found in the Rabbinical story of 
Abraham when he was cast into a fiery furnace by Nimrod, 
for reproving the idolatry of the latter, and escaped unharmed 
from the flames;^ as well as the similar experience of Shad- 
rach, Mesach, and Abednego, when they were saved from 
the wrath of Nebuchadnezzar.^ These experiences were 
repeated in 597, A. D., under the Emperor Anastasius, by a 
Catholic bishop who, after being worsted in a theological 
dispute by the subtle logic of an Arian, offered to test the 
soundness of their respective doctrines by together entering 
a blazing fire. The prudent Arian declined the proposition, 
when the enthusiastic Catholic jumped upon a burning pile, 
and thence continued the controversy without suffering the 
least inconvenience.^ 

The earliest legal allusion to this form of ordeal in Europe 
occurs in the code of the Ripuarian Franks, where it is pre- 
scribed as applicable to slaves and strangers, in some cases 
of doubt.* From the phraseology of these passages, we may 
conclude that it was then administered by placing the hand 
of the accused in a fire. Subsequently, however, it was 
conducted on a larger and more impressive scale; huge 
pyres were built, and the individual undergoing the trial 
literally walked through the flames. The celebrated Petrus 
Igneus gained his surname and reputation by an exploit of 
this kind, which attracted great attention in its day. Pietro 
di Pavia, Bishop of Florence, unpopular with the citizens, 
but protected by Godfrey, Duke of Tuscany, was accused 
of simony and heresy. Being acquitted by the Council of 
Rome, in 1063, and the offer of his accusers to prove his 
guilt by the ordeal of fire being refused, he endeavored to 

1 Targum of Palestine, Gen. xi. (Etheridge's Translation, I, 19 1-2). — 
Shalshelet Hakkabala fol. 8a. (Wagenseilii Sotap. 192-3,) 

2 Daniel iii. 19-28. 

a Tlieodori i:ector. H. E. Lib. ii. 

4 Quodsi servus in ignem manum miserit, et laesam tulerit, etc. — Tit. 
XXX. Cap. i. ; also Tit. xxxi. 



268 THE ORDEAL. 

put down his adversaries by tyranny and oppression. Great 
disturbances resulted, and at length, in 1067, the monks of 
Vallombrosa, who had borne a leading part in denouncing 
the Bishop, and who had suffered severely in consequence 
(the episcopal troops having burned the monastery of St. 
Salvio and slaughtered the cenobites), resolved to decide the 
question by the ordeal, incited thereto by no less than three 
thousand enthusiastic Florentines who assembled there for 
the purpose. Pietro Aldobrandini, a monk of Vallombrosa, 
urged by his superior, the holy S. Giovanni Gualberto, 
offered himself to undergo the trial. After imposing reli- 
gious ceremonies, he walked slowly between two piles of 
blazing wood, ten feet long, five feet wide, and four and a 
half feet high, the passage between them being six feet wide 
and covered with an inch or two of glowing coals. The vio- 
lence of the flames agitated his dress and hair, but he emerged 
without hurt, even the hair on his legs being unsinged, bare- 
legged and barefooted though he was. Desiring to return 
through the pyre, he was prevented by the admiring crowd, 
who rushed around him in triumph, kissing his feet and gar- 
ments, and endangering his life in their transports, until he 
was rescued by his fellow monks. A formal statement of 
the facts was sent to Rome by the Florentines, the Papal 
court gave way, and the bishop was deposed; while the 
monk who had given so striking a proof of his steadfast 
faith was marked for promotion, and eventually died Cardi- 
nal of Albano.^ 

An example of a similar nature occurred in Milan in 1103, 
when the Archbishop Grossolano was accused of simony by 
a priest named Liutprand, who, having no proof to sustain 
his charge, offered the ordeal of fire. All the money he 
could raise he expended in procuring fuel, and when all 
was ready the partisans of the archbishop attacked the pre- 
parations and carried off the wood. The populace, deprived 

' Vit, S. Johannis Gualberti c. lx,-lxiv. 



ORDEAL OF FIRE, 269 

of the promised exhibition, grew turbulent, and Grossolano 
was obliged not only to assent to the trial, but to join the 
authorities in providing the necessary materials. In the 
Piazza di S. Ambrogio two piles were accordingly built, 
each ten cubits long, by four cubits in height and width, 
with a gangway between them of a cubit and a half. As the 
undaunted priest entered the blazing mass, the flames divided 
before him, and closed as he passed, allowing him to emerge 
in safety, although with two slight injuries, one a burn on 
the hand, received while sprinkling the fire before entering, 
the other on the foot, which he attributed to a kick from a 
horse in the crowd that awaited his exit. The evidence was 
accepted as conclusive by the people, and Grossolano was 
obliged to retire to Rome. Pascal II., however, received 
him graciously, and the Milanese suffragans disapproved of 
the summary conviction of their metropolitan, to which they 
were probably all equally liable. The injuries received by 
Liutprand were exaggerated, a tumult was excited in Milan, 
the priest was forced to seek safety in flight, and Grossolano 
was restored.^ 

A volunteer miracle of somewhat the same character, 
which is recorded as occurring in Paris early in the thirteenth 
century, may be alluded to as illustrating the belief of the 
period. A loose woman in the household of a great noble 
was luring the youthful retainers to sin, when the chaplain 
remonstrated with his master, and threatened to depart un- 
less she was removed. When she was taxed with her guilt 
she defended herself by saying that the priest had accused 
her because she had refused his importunities, and offered 
to prove it. Approaching him as a penitent, she sought to 
seduce his virtue, finally threatening to kill herself unless he 
would gratify her despairing love, until, to prevent her sui- 
cide, he finally made an appointment with her. Secretly 

' Landulph. Jun, Hist. Mediol. cap. ix., x., xi. (Rer Ital. Script. T. 
V.) — Muratori, Annal. Ann. 1103, 

23* 



270 THE ORDEAL. 

announcing her triumph to the noble, she went to the place 
of meeting, where she found the chaplain mounted on a bed 
of plank, surrounded by straw and dry wood, to which he 
set fire on her appearance, and invited her to join him. 
Covered by the flames, the sinless man felt nothing but a 
cool, refreshing breeze, and when the pile had burnt out, 
he emerged unhurt, even his garments and hair being un- 
touched.^ 

But the experiment was not always so successful for the 
rash enthusiast. In 1098, during the first crusade, after the 
capture of Antioch, when the Christians were in turn be- 
sieged in that city, and, sorely pressed and famine-struck, 
were well-nigh reduced to despair, an ignorant peasant 
named Peter Bartholomew, a follower of Raymond of Tou- 
louse, announced a series of visions in which St. Andrew 
and the Saviour had revealed to him that the lance which 
pierced the side of Christ lay hidden in the church of St. 
Peter. After several men had dug in the spot indicated, 
from morning until night, without success, Peter leaped into 
the trench, and by a few well-directed stokes of his mattock 
exhumed the priceless relic, which he presented to Count 
Raymond. Cheered by this, and by various other manifes- 
tations of Divine assistance, the Christians gained heart, and 
defeated the Infidels with immense slaughter. Peter became 
a man of mark, and had fresh visions on all important con- 
junctures. Amid the jealousies and dissensions which raged 
among the Frankish chiefs, the possession of the holy lance 
vastly increased Raymond's importance, and rival princes 
were found to assert that it was merely a rusty Arab weapon, 
hidden for the occasion, and wholly undeserving the venera- 
tion of which it was the object. At length, after some months, 
during the leisure of the siege of Archas, the principal eccle- 
siastics in the camp investigated the matter, and Peter, to 
silence the doubts expressed as to his veracity, offered to 

I Caesar. Heisteib. Dial. Mirac. Dist. X. c. xxxiv. 



ORDEAL OF FIRE. 2'Jl 

vindicate the identity of the relic by the fiery ordeal. He 
was taken at his word, and after three days allowed for fast- 
ing and prayer, a pile of dry olive-branches was made, four- 
teen feet long and four feet high, with a passage-way one 
foot wide. In the presence of forty thousand men all eagerly 
awaiting the result, Peter, bearing the object in dispute, and 
clothed only in a tunic, boldly rushed through the flames, 
amid the anxious prayers and adjurations of the multitude. 
As the chroniclers lean to the side of the Neapolitan Princes 
or of the Count of Toulouse, so do their accounts of the 
event differ ; the former asserting that Peter sustained mortal 
injury in the fire; the latter assuring us that he emerged 
safely, with but one or two slight burns, and that the crowd 
enthusiastically pressing around him in triumph, he was 
thrown down, trampled on, and injured so severely that he 
died in a few days, asseverating with his latest breath the 
truth of his revelations. Raymond persisted in upholding 
the sanctity of his relic, but it was subsequently lost.^ 

Even after the efforts of Innocent III. to abolish the 
ordeal, and while the canons of the Council of Lateran were 
still fresh, St. Francis of Assisi, in 1219, offered himself to the 
flames for the propagation of the faith. In his missionary 

• Fulcher. Carnot. cap. x. ; Radiilf. Cadomensis cap. c, ci,, cii., cviii. ; 
Raimond. de Agiles (Bongars, I. 150-168). The latter was chaplain of 
the Count of Toulouse, and a firm asserter of the authenticity of the lance. 
He relates with pride, that on its discovery he threw himself into the 
trench and kissed it while the point only had as yet been uncovered. He 
officiated likewise in the ordeal, and delivered the adjuration as Peter 
entered the flames : " Si Deus omnipotens huic homini loquutus est facie 
ad faciem, et beatus Andreas Lanceam Dominicam ostendit ei, cum ipse 
vigilaret, transeat iste illaesus per ignem. Sin autem aliter est, et menda- 
cium est, comburatur iste cum lancea quam portabit in manibus suis." 
Raoul de Caen, on the other hand, in 1107 became secretary to the chival- 
rous Tancred, and thus obtained his information from the opposite party. 
He is very decided in his animadversions on the discoverers. Foulcher de 
Chartres was chaplain to Baldwin I. of Jerusalem, and seems impartial, 
though sceptical. 



272 THE ORDEAL. 

trip to the East, finding the Sultan deaf to. his proselyting 
eloquence, he proposed to test the truth of their respective 
religions by entering a blazing pile in company with some 
imams, who naturally declined the perilous experiment. 
Nothing daunted, the enthusiastic Saint then said that he 
would traverse the flames alone if the Sultan would bind 
himself, in the event of a triumphant result, to embrace the 
Christian religion and to force his subjects to follow the 
example. The Turk, more wary than the Dane whom Poppo 
converted, declined the proposition, and St. Francis returned 
from his useless voyage unharmed.^ The honors which the 
unbelievers rendered to their self-sacrificing guest may per- 
haps be explained by the reverence with which they are 
accustomed to regard madmen. 

In this St. Francis endeavored unsuccessfully to emulate 
the glorious achievement of Boniface, the Apostle of Russia, 
who, according to the current martyrologies, converted the 
King of Russia to the true faith by means of such a bargain 
and ordeal.^ It is a little curious that Peter Cantor, in his 
diatribe against the judgment of God, presents the supposi- 
tion of a trial such as this as an unanswerable argument 
against the system — the church, he says, could not assent to 
such an experiment, and therefore it ought not to be trusted 
in affairs of less magnitude.^ 

A still more remarkable attempt to perform a feat of this 
kind occurred at a much later period, when the whole sys- 
tem had long become obsolete, and though not carried into 
execution, it is worthy of passing notice, as it may be said 
to have produced results affecting permanently the destinies 
of civilization. When at the close of the fifteenth century, 
Savonarola, the precursor of the Reformation, was com- 
mencing at Florence the career which Luther afterwards 

' Raynaldi Annal, Eccles. ann. 1219, c. 56. 

2 Martyrol. Roman. 19 Jun. — Petri Damian. Vit. S. Romualdi c. 27. 

3 Petri Cantor. Verb, Abbreviat. cap. Ixxviii. (Patrol. CCV. 229.) 



ORDEAL OF FIRE. 273 

accomplished, and was gradually throwing off all reverence 
for the infamous Borgia, who then occupied the chair of 
St. Peter, he challenged any of his adversaries to undergo 
with him the ordeal of fire, to test the truth of his proposi- 
tions that the Church needed a thorough reformation, and 
that the excommunication pronounced against him by the 
Pope was null and void. In 1497, the Franciscan Francesco 
di Puglia, an ardent opponent, accepted the challenge, but 
left Florence before the preliminaries were arranged. On 
his return, in the following year, the affair was again taken 
up, but the principals readily found excuses to devolve the 
dangerous office on enthusiastic followers. Giuliano Rondi- 
nelli, another Franciscan, agreed to replace his companion, 
declaring that he expected to be burned alive; while on the 
other side the ardor was so great that two hundred and 
thirty-eight Dominicans and numberless laymen subscribed 
a request to be permitted to vindicate their cause by triumph- 
antly undergoing the trial unhurt, in place of Domenico da 
Peschia, who had been selected as Savonarola's champion. 
At length, after many preliminaries, the Signiory of Florence 
assigned the 7th of April, 1498, for the experiment. An 
immense platform was erected, on which a huge pile of wood 
was built, charged with gunpowder and other combustibles, 
and traversed by a narrow passage, through which the cham- 
pions were to walk. All Florence assembled to see the 
show ; but, when everything was ready, quibbles arose about 
permitting the champions to carry crucifixes, and to have 
the sacrament with them, about the nature of their garments, 
and other like details, in disputing over which the day wore 
away, and at vespers the assemblage broke up without result. 
Each party, of course, accused the other of having raised 
the difficulties in order to escape the ordeal; and the people, 
enraged at being cheated of the promised exhibition, and 
determined to have compensation for it, easily gave credit 
to the assertions of the Franciscans, who stimulated their 
ardor by affirming that Savonarola had endeavored to com- 



2 74 THE ORDEAL. 

mit the sacrilege of burning the sacrament. In two days a 
tumult was thus raised, during which Savonarola's convent 
of San Marco was attacked. Notwithstanding a gallant re- 
sistance by the friars, he was taken prisoner, and after under- 
going frightful tortures, was hanged and burned. Thus was 
repressed a movement which at one time promised to re- 
generate Italy, and to restore purity to a corrupted Church.^ 
It will be observed that the ordeal of fire was principally 
affected by ecclesiastics in church affairs, perhaps because it 
was of a nature to produce a powerful impression on the 
spectators, while at the same time it could no doubt in many 
irstances be so managed as to secure the desired results by 
those who controlled the details. In like manner, it was 
occasionally employed on inanimate matter to decide points 
of faith or polity. Thus, in the question which excited great 
commotions in Spain, in 1077, as to the substitution of the 
Roman for the Gothic or Mozarabic rite, after a judicial 
combat had been fought and determined in favor of the 
national ritual, the partisans of the Roman offices continued 
to urge their cause, and the ordeal of fire was appealed to. 
A missal of each kind was committed to the flames, and, to 
the great joy of all patriotic Castilians, the Gothic offices 
were unconsumed.^ More satisfactory to the orthodox was 

' I have principally followed a very curious and characteristic account 
of the " Sperimento del Fuoco," contained in a Life of Savonarola by the 
P. Pacifico Burlamacchi, given by Mansi in his edition of the Miscellanea 
of Baluze, I. 530 sqq. Burlantacchi, as a disciple and ardent follower of 
the reformer, of course throws all the blame of defeating the ordeal on 
the quibbles raised by the Franciscans, while the Diary of Burchard, mas- 
ter of ceremonies of the Papal Chapel to Borgia (Diarium Curiae Ro- 
raanse, ann. 1498), roundly asserts the contrary. Guicciardini (Lib. III. 
cap. vi.) briefly states the facts, without venturing an opinion, except that 
the result utterly destroyed the credit of Savonarola, and enabled his ene- 
mies to make short work with him. 

2 Ferreras, Hist. Gen. d'Espagne, trad. d'PIermilly, III. 245. The au- 
thenticity of this miracle has somewhat exercised orthodox writers, and 
Mabillon states that the earliest authority for it is Roderic, Archbishop 



ORDEAL OF FIRE. 275 

the result of a similar ordeal which marked the opening of 
St. Dominic's career against the Albigenses. In a dispute 
with some heretics he wrote out his argument on the points 
of faith, and gave it to them for examination and reply. 
That night, as they were seated around the hearth, the paper 
was produced and read, when one of them proposed that it 
should be cast into th^ flames, when, if it remained uncon- 
sumed, they would see that its contents were true. This 
was promptly done, when the saintly document was unharm- 
ed. One, more obstinate than the rest, asked for a second 
and then for a third trial, with the same result. The per- 
verse heretics, however, closed their hearts against the 
truth, and bound themselves by oath to keep the affair se- 
cret ; and so glorious a victory for the true faith would have 
remained unknown but for the indiscretion of one of them, 
a knight, who had a covert inclination towards orthodoxy.^ 
A somewhat similar instance occurred in Constantinople, as 
late as the close of the thirteenth century, when Andronicus 
II., on his accession, found the city torn into factions rela- 
tive to the patriarchate, arising from the expulsion of Arse- 
nius, a former patriarch. All attempts to soothe the dissen- 
sions proving vain, at length both parties agreed to write out 
their respective statements and arguments, and, committing 
both books to the flames, to abide by the result, each side 
hoping that its manuscript would be preserved by the special 
interposition of Heaven. The ceremony was conducted 
with imposing state, and, to the general surprise, both books 
were reduced to ashes. Singularly enough, all parties united 
in the sensible conclusion that God had thereby commanded 
them to forget their differences, and to live in peace. ^ 

of Toledo, who flourished in the middle of the thirteenth century (Prooem. 
ad Vit. Greg. VII. No 10). If this be so, it only shows to how late a 
period the superstition extended. 

' Pet. Val. Cernaii Hist. Albigens. cap. III. 

2 Niceph. Gregor. Lib. vi. 



276 THE ORDEAL. 

About the same period as this last example, Samaritan 
tradition related that the comparative claims of Mt. Gerizim 
and Al-Qods (Jerusalem) as the sole seats of Yahveh-worship 
were settled before JSebuchadnezzar, by the ordeal of fire, 
applied respectively to the Pentateuch and to the later books 
of the Jewish canon, Sanballat appearing for Ephraim, and 
Zerubbabel for Judah. The later books were promptly 
consumed, but the law of Moses emerged twice from the 
flames unhurt. Zerubbabel, in despair, then spat upon some 
pages of the index, and cast the Law a third time into the 
fire, when the leaves thus polluted were burnt, but the book 
itself leaped unscathed into the bosom of the king, who 
promptly slew the representatives of Judah, and gave an un- 
hesitating verdict in favor of the Samaritans.^ 

Somewhat irregular as a judicial proceeding, but yet illus- 
trating the general belief in the principles of the ordeal of 
fire, was an occurrence related about the year 1220 by Cae- 
sarius of Heisterbach as having taken place a few years be- 
fore in Arras. An ecclesiastic of good repute decoyed a 
goldsmith into his house, and murdered him to obtain pos- 
session of some valuables, cutting up the body, with the 
assistance of a younger sister, and hiding the members in a 
drain. The crime was proved upon them, and both were 
condemned to the stake. On the way to the place of punish- 
ment, the girl demanded a confessor, and confessed her sins 
with full contrition, but the brother was obdurate and im- 
penitent. Both were tied to the same stake; the brother was 
promptly reduced to ashes, while the flames were deliciously 
cool to the sister, and only burnt the rope with which she 
was tied, so that she quietly walked down from the pile. 
The judges, thus convinced of her innocence, dismissed her 
without further trouble.^ 

In India, we have seen the ordeal of fire resorted to by 

' Chron. Samaritan, c. xlv. (Ed. Juynboll, Lug. Bat, 1848, p. 183.) 
2 Ca.^sar. Heisterbacli. Dial. Mirac, List. III. c. xv. 



ORDEAT. OFFIRE. 277 

Sita to remove the doubts of Rama as to her purity. As 
practised in modern times its form approaches somewhat the 
ordeal of the burning ploughshares. A trench is dug nine 
hands in length, two spans in breadth, and one span in 
depth. This is filled with peepul wood, which is then set on 
fire, and the accused walks into it with bare feet.' A more 
humane modification is described in the seventh century by 
Hiouen-Thsang as in use when the accused was too tender 
to undergo the trial by red-hot iron. He simply cast into 
the flames certain flower-buds, when, if they opened their 
leaves, he was acquitted ; if they were burnt up, he was con- 
demned.^ 

The genuineness of relics was often tested in this manner 
by exposing them to the action of fire. This custom, like 
the ordeal itself as a judicial process, finds its original home 
in the East. When, for instance, the sacred tooth-relic of 
Buddha was carried to the court of King Pandu at Patali- 
putta, and its holiness was questioned by the Niganthas, or 
worshippers of Siva, they tested it by casting it into a pit 
filled with glowing charcoal "bright and horrid as the hell 
Roruva" — when the tooth, in place of being consumed to 
ashes, rose out of the fiery mass resting on a lotus, the size 
of a chariot-wheel.^ Even Roman unbelief accepted a simi- 
lar faith respecting the superfluous thumb which ornamented 
the right foot of King Pyrrhus, the touch of which cured 
diseases of the spleen, and which remained unharmed on the 
funeral pyre which consumed the rest of his body to ashes. 
The indestructible supplementary member was thereupon in- 
closed in a casket, and reverently placed in a temple — the 
first relic, probably, on record in the western world.* At 
how early an age Christianity adopted the belief which led to 

• AH Ibrahim Khan (Asiatic Researches, I. 390). 

2 Wheeler's Hist, of India, III. 262. 

3 Dathavansa, chap. III. II-13. (Sir M. Coomara Swamy's translation, 
London, 1874.) 

4 Plinii Hist. Natur. L. VII. c. ii. 

24 



278 THE ORDEAL. 

this is manifested by the story of the swaddling-cloth of 
Christ in one of the apocryphal Gospels. The Virgin, being 
unable, on account of poverty, to make a return for the offer- 
ings of the Magi who came to worship the infant Saviour, 
presented them with one of his swaddling-bands. On their 
return they placed it in the sacred fire of their altar, and 
though the flames eagerly embraced it, they left it unharmed 
and unaltered, whereupon the Magi venerated it, and laid it 
away among their treasures.^ 

Numerous instances of this superiority of relics to fire are 
narrated by the pious chroniclers of the middle ages. In 
1015 some monastic pilgrims, hospitably received at Monte 
Cassino on their return from Jerusalem, offered at the shrine 
of St. Benedict a fragment of the towel with which the Sa- 
viour had washed the feet of his disciples. Some of the 
monks, being incredulous, placed it on burning coals, when 
it turned fiery red, but, on being removed, returned to its 
original color, and all doubts as to its authenticity were dis- 
pelled.^ When, in 1065, the pious Egelwin, Bishop of Dur- 
ham, miraculously discovered the relics of the holy martyr 
King Oswyn, he gave the hair to Judith, wife of Tosti, Earl 
of Northumberland, and she with all reverence placed it on 
a raging fire, whence it was withdrawn, not only uninjured, 
but marvellously increased in lustre, to the great edification 
of all beholders.^ A similar miracle attested the sanctity of 
King Olaf the Saint, of Norway, when his hair was laid on 
a pan of live coals, consecrated by Bishop Grimkel, to satisfy 
the incredulity of Queen Alfifa.* Guibert de Nogent like- 
wise relates that, when his native town became honored with 
the possession of an arm of St. Arnoul, the inhabitants, at 
first doubting the genuineness of the precious relic, cast it 

• Gospel of the Infancy, iii. 

^ Chron. Casininsis Lib. ii. c. xxxiv. 

3 Matthew of Westminster, Ann. 1065. 

'^ Olaf Haraldss. Saga, ch. 258. (Laing's Heiniskringla, II. 349.) 



COLD WATER. 279 

into the flames; when it vindicated its sanctity, not only by 
being fire-proof, but also by leaping briskly away from the 
coals, testimony which was held to be incontrovertible.^ 
The historian of the monastery of Andres informs us that 
when in 1084 the long-lost remains of the holy virgin Ro- 
truda were miraculously found, and Baldwin I., Count of 
Guisnes, desired to take the sacred treasure to his town of 
Guisnes, it refused to be removed until he proposed to place 
it on a wagon, and allow a team of oxen to be divinely guided 
to the spot where the saint desired to rest. This was accord- 
ingly done, and the oxen carried the relics to a little chapel 
dedicated to St. Medard, where steps were immediately taken 
to found an abbey. The Seigneur of Andres, however, 
Baldwin Bochard, on whose lands the chapel lay, foreseeing 
that a powerful monastery would be a troublesome neighbor, 
and being an irreligious man, circulated defamatory libels 
impugning the authenticity of the relics, and finally persuaded 
Count Baldwin to have them tested by the ordeal of fire. 
This was accordingly done, and the genuineness of the holy 
remains was proved to the satisfaction of all. Bochard and 
his descendants continued inveterately hostile to St. Rotruda 
and her monks, but all, without exception, were compelled, 
upon their death-beds, to contribute a portion of their sub- 
stance to her honor.^ 



ORDEAL OF COLD WATER. 

The cold-water ordeal {^judicium aquce- frigtdcE) differed 
from most of its congeners in requiring a miracle to convict 
the accused, as in the natural order of things he escaped. 
The prelirninary solemnities, fasting, prayer, and religious 
rites, were similar to those already described ; holy water 
sometimes was given to the accused to drink ; the reservoir 

' Guibert. Noviogent. de Vita sua Lib. ill. cap. xxi. 

2 Chron. Andrensis Monast. (D'Achery Spicileg. II. 782,) 



28o THE ORDEAL. 

of water, or pond, was then exorcised with formulas ex- 
hibiting the same combination of faith and impiety, and the 
accused, bound with cords, was lowered into it with a rope, 
to prevent fraud if guilty, and to save him from drowning 
if innocent.^ According to Anglo-Saxon rule the length of 
rope allowed under water was an ell and a half;'^ but in 
process of time nice questions arose as to the precise 
amount of submergence requisite for acquittal. Towards the 
close of the twelfth century we find that some learned doc- 
tors insisted that sinking to the very bottom of the water was 
indispensable; others decided that if the whole person were 
submerged it was sufficient; while others again reasoned 
that as the hair was an accident or excrement of the body, 
it had the privilege of floating without convicting its owner, 
if the rest of his body was satisfactorily covered.^ 

The basis of this ordeal was the belief, handed down 
from the primitive Aryans, that the pure element would not 
receive into its bosom any one stained with the crime of a 
false oath, another form of which is seen in the ancient 
superstition that the earth would eject the corpse of a crim- 
inal, and not allow it to remain quietly interred. The 
manner in which the church reconciled it to orthodoxy is 
clearly set forth by Hincmar: "He who seeks to conceal the 
truth by a lie will not sink in the waters over which the 
voice of the Lord hath thundered; for the pure nature of 
water recognizes as impure, and rejects as incompatible, 
human nature which, released from falsehood by the waters 
of baptism, becomes again infected with untruth."* The 
baptism in the Jordan, the passage of the Red Sea, and the 

' Hincmar. de Divort. Lothar. Interrog. vi. It may readily be sup- 
posed that a skilful management of the rope might easily produce the 
appearance of floating, when a conviction was desired by the priestly 
operators. 

2 L. ^thelstani I. cap. xxiii. 

3 Petri Cantor. Verb, Abbreviat. cap. Ixxviii. (Patrol. CCV. 233.) 
^ De Divort. Lothar. Interrog. vi. 



COLD WATER. 28 C 

crowning judgment of the Deluge, were freely adduced in 
support of this theory, though these latter were in direct con- 
tradiction to it ; and the most figurative language was boldly 
employed to give some show of probability to the results 
expected. Thus, in St. Dunstan's elaborate formula, the 
prayer offered over the water metaphorically adjures the 
Supreme Being — ''Let not the water receive the body of 
him who, released from the weight of goodness, is upborne 
by the wind of iniquity !"^ 

In India the simplicity of this form of ordeal has been 
curiously varied. As described in the seventh century by 
the Buddhist pilgrim Hiouen Thsang, the accused was fast- 
ened into one sack and a stone in another. The two sacks 
were then tied together, and thrown into a deep running 
stream, when if the man sank and the stone rose he was pro- 
nounced guilty, while if the stone sank and the man rose he 
was absolved.^ According to the code of Yajnavalkya, 
the trial is rather one of endurance. The patient stands 
in water up to his middle, facing the East, catches hold 
of the thighs of a Brahman standing with him, and utters 
the adjuration "Preserve me, O Varuna, by declaring the 
truth!" He dives under, while simultaneously an arrow 
of reed without a head is shot from a bow, io6 fingers' 
breadth in length, and if he can remain under water until 
the arrow is picked up and brought back, he gains his 
cause. Yajnavalkya says this form of ordeal was only used 
on the Sudras, or lowest caste, while the Ayeen Akbery 
speaks of it as confined to the Vaisyas, or caste of husband- 
men and merchants.^ 

Although, as we have seen, the original cold water ordeal 

' Ordo S. Duiistani Dorobern. (Baluze II. 650.) 

2 Wheeler's Hist, of India, III. 262. 

3 Yajnavalkya (As. Researches, I. 402-4). — Ayeen Akbery, II. 497. — 
Some unimportant variations in details are given by Ali Ibrahim Khan 
(As. Researches, I. 390). 



282 THE ORDEAL. 

in India, as described by Manu, was precisely similar to the 
European form, inasmuch as the guilty were expected to 
float and the innocent to sink, and although in this shape it 
prevailed everywhere throughout Europe, and its tenacity of 
existence rendered it the last to disappear in the progress of 
civilization, yet it does not make its appearance in any of 
the earlier codes of the Barbarians. The first allusions to it 
occur in the ninth century, and it was then so generally re- 
garded as a novelty that documents almost contemporaneous 
ascribe its invention to the popes of that period. One story 
is that when Leo III. fled in 799 from his rebellious subjects 
to Charlemagne, and returned to Rome under the latter' s 
protection, the cold water ordeal was introduced for the 
purpose of trying the rebels.^ Another version asserts that 
Eugenius II. who occupied the pontifical throne from 824 to 
827 invented it at the request of Louis-le-Debonnaire, for the 
purpose of repressing the prevalent sin of perjury. "-^ It is 
further worthy of note that St. Agobard, Archbishop of 
Lyons, in his treatises against the judgments of God, written 
a few years before the accession of Eugenius, while enume- 
rating and describing the various methods in use at the time, 
says nothing about that of cold water. ^ But for the evidence 
of its pre- existence in the East, we therefore should be justi- 
fied in assuming that it was an innovation invented by the 
church of the ninth century.* 

At first, its revival promised to be but temporary. Only 

' Canciani Legg. Barbar. T. I. pp. 282-3. 

2 Baluze II. 646. — Mabillon Analect. pp. 161-2 [ap. Cangium). — 
Muratori Antiq. Ital. Diss. 38. — Jureti Observat. ad Ivon. Epist. 74. 

3 Lib. adv. L. Gundobadi cap. ix. — Lib. contra Judic. Dei, c. i. 

4 Arguments for its earlier use in Europe have been drawn from certain 
miracles related by Gregory of Tours (Mirac. Lib. J. c. 69-70), but these 
relate to innocent persons unjustly condemned to drowning, who were 
preserved, and therefore these cases have no bearing on the matter. The 
Epistle in Gratian (C. Mennam caus. 2, q. 5) ascribed to Gregory I. has 
long since been restored to its true author, Alexander II. (Epist. 122.) 



COLD WATER. 283 

a few years after its introduction, it was condemned by 
Louis-le-Debonnaire at the Council at Worms, in 829; its 
use was strictly prohibited, and the "missi dominici" were 
instructed to see that the order was carried into effect, 
regulations which were repeated by the Emperor Lothair, 
son of Louis. ^ These interdictions were of little avail. The 
ordeal found favor with popular superstition, and Hincmar 
contents hmiself with remarking that the imperial prohibition 
was not confirmed by the canons of authoritative councils.^ 
The trial by cold water spread rapidly throughout Europe, 
and by all the continental races it was placed on an equal 
footing with the other forms of ordeal. Among the Anglo- 
Saxons, indeed, its employment has been called in question 
by some modern writers; but the Dooms of Ethelstan, and 
the formula of St. Dunstan of Canterbury, already quoted, 
sufficiently manifest its existence in England before the 
Conquest, while as late as the close of the twelfth century 
its use would seem to have been almost universal. The 
assizes of Clarendon in 1166, confirmed at Northampton in 
1 1 76, direct an inquest to be held in each shire, and all who 
are indicted for murder, robbery, harboring of malefactors, 
and other felonies are to be at once, without further trial, 
passed through the water ordeal to determine their guilt or 
innocence.^ 

The water ordeals, both hot and cold, were stigmatized 
as plebeian from an early period, as the red-hot iron and the 
duel were patrician. Thus Hincmar, in the ninth century, 
alludes to the former as applicable to persons of servile con- 
dition ;* a constitution of the Emperor St. Henry H., about 

^ y Capit. Wormat. Ann. 829, Tit. II. cap. 12; — L. Longobard. Lib. II. 
Tit. Iv. ? 31. 

2 De Divert. Lothar. Interrog. vi. 

3 Assisa facta apud Clarendune || I, 2. — Assisa apud Nortbaratoniam. 
(Gesta Henrici II. T. II. p. cxlix ; T. I. p. 108.— M. R. Series.) 

■* Opusc. adv. Hincmar. Laudun. cap. xliii. 



284- THE ORDEAL. 

A. D. looo, in the Lombard law, has a similar bearing;^ an 
Alsatian document in the eleventh,^ and the laws of Scotland 
in the twelfth century, assume the same position;-'^ and Glan- 
ville at the end of the twelfth century expressly asserts it.* 
This, however, was an innovation ; for in the earliest codes 
there was no such distinction, a provision in the Salic law 
prescribing the cBueum, or hot-water ordeal, even for the 
Antrustions, who constituted the most favored class in the 
state. ^ Nor even in later times was the rule by any means 
absolute. In the tenth century, Sanche, Duke of Gascony, 
desirous of founding the monastery of Saint Sever, claimed 
some land which was necessary for the purpose, and being 
resisted by the possessor, the title was decided by reference 
to the cold-water ordeal.^ In 1027, Welf II., Count of 
Altorf, ancestor of the great houses of Guelf in Italy and 
England, having taken part in the revolt of Conrad the 
Younger and Ernest of Suabia, was forced by the Emperor 
Conrad the Salic to prove his innocence in this manner.'^ 
This may have been, perhaps, intended rather as an humilia- 
tion than as a judicial proceeding, for Welf had been guilty 
of great excesses in the conduct of the rebellion ; but about 
the same period Othlonus relates an incident in which a man 
of noble birth accused of theft submitted himself to the cold- 

1 L. Longobard. Lib. i. Tit. ix. \ 39. 

2 Recess. Convent, Alsat. anno 105 1, \ 6. (Goldast. Constit. Imp. 
11. 48.) 

3 Regiam Majestatem Lib, iv, cap, iii. § 4. 
1 De Legg. Angliae Lib, xiv, cap. i. 

There may be, however, some question as to this. In 1 177 a citizen of 
London v\^ho is qualified as " nobilissimus et ditissimus," accused of rob- 
bery, was tried by the water ordeal, and on being found guilty offered 
Henry 11. five hundred marks for a pardon. The dazzling bribe was re- 
fused, and he was duly hanged. — Gesta Henrici II, T, I. p, 156. 

5 Text. Herold. Tit. Lxxvi. 

6 Mazure et Hatoulet, Fors de Beam, p. xxxi. 

7 Conrad. Ursperg. sub Lothar. Saxon. 



COLD WATER. 285 

water ordeal as a matter of course;^ and we find, nearly two 
centuries later, when all the vulgar ordeals were falling into 
disuse, the water ordeal established among the nobles of 
Southern Germany, as the mode of deciding doubtful claims 
on fiefs, and in Northern Germany, for the settlement of 
conflicting titles to land.^ 

In 1083, during the deadly struggle between the Empire 
and the Papacy, as personified in Henry IV. and Hildebrand, 
the imperialists related with great delight that some of the 
leading prelates of the Papal court submitted the cause of 
their chief to this ordeal. After a three days' fast, and 
proper benediction of the water, they placed in it a boy to 
represent the Emperor, when to their horror he sank like a 
stone. On referring the result to Hildebrand, he ordered 
a repetition of the experiment, which was attended with the 
same result. Then, throwing him in as a representative of 
the Pope, he obstinately floated during two trials, in spite of 
all efforts to force him under the surface, and an oath was 
exacted from all concerned to maintain inviolable secrecy as 
to the unexpected result.^ 

Perhaps the most extensive instance of the application of 
this form of ordeal was that pro[)osed when the sacred ves- 
sels were stolen from the cathedral church of Laon, as related 
by a contemporary. At a council convened on the subject. 
Master Anselm, the most learned doctor of the diocese, sug- 
gested that, in imitation of the plan adopted by Joshua at 
Jericho, a young child should be taken from each parish of 
the town and be tried by immersion in consecrated water. 
From each house of the parish which should be found guilty, 
another child should be chosen to undergo the same process. 
When the house of the criminal should thu's be discovered, 

' Quidam illustris vir. — Othlon. de Mirac. quod nuper accidit etc. 
(Migne's Patrol. T. 140, p. 242.) 

2 Juris Feud. Alaman. cap. Ixxvii. ^ 2. — Jur. Prov. Saxon. Lib. ill, 
c. 21. 

^ MS, Brit. Mus. quoted by PerLz in Hugo. Flaviniac, Lib. ir. 



286 THE ORDEAL. 

all its inmates should be submitted to the ordeal, and the 
author of the sacrilege would thus be revealed. This plan 
would have been adopted had not the frightened inhabitants 
rushed to the Bishop and insisted that the experiment should 
commence with those whose access to the church gave them 
the best opportunity to perpetrate the theft. Six of these 
latter were accordingly selected, among whom was Anselm 
himself. While in prison awaiting his trial, he caused him- 
self to be bound hand and foot and placed in a tub full of 
water, in which he sank satisfactorily to the bottom, and 
assured himself that he should escape. On tlie day of trial, 
in the presence of an immense crowd, in the cathedral which 
was chosen as the place of judgment, the first prisoner sank, 
the second floated, the third sank, the fourth floated, the 
fifth sank, and Anselm, who was the sixth, notwithstanding 
his previous experiment, obstinately floated, and was con- 
demned with his accomplices, in spite of his earnest protes- 
tations of innocence.^ 

Although the cold-water ordeal disappears from the statute- 
book in civil and in ordinary criminal actions together with 
its kindred modes of purgation, there was one class of cases 
in which it maintained its hold upon the popular faith to a 
much later period. These were the accusations of sorcery 
and witchcraft which form so strange a feature of medieval 
and modern society ; and its use for this purpose may appa- 
rently be traced to various causes. For such crimes, drown- 
ing was the punishment inflicted by the customs of the 
Franks, as soon as they had lost the respect for individual 
liberty of action which excluded personal punishments from 
their original code;^ and in addition to the general belief 
that the pure element refused to receive those who were 
tainted with crime, there was in this special class of cases a 

' Hermann, de Mirac. S. Marise Laudun. Lib. III. cap. 28. 
2 Lodharius . . . Gerbergam, more inaleficorttm, in Arari mergi prae- 
cepit.— Nithardi Hist. Lib. i. Ann. 834. 



WITCH TRIALS. 287 

widely spread superstition that adepts in sorcery and magic 
lost their specific gravity. Pliny mentions a race of en- 
chanters on the Euxine who were lighter than water — *^ eos- 
dem praeterea non posse mergi ne veste qiiidam degravatos ;"^ 
and Stephaniis Byzantinus describes the inhabitants of Thebe 
as magicians who could kill with their breath, and floated 
when thrown into the sea.^ To the concurrence of these 
notions we may attribute the fact that when the cold-water 
ordeal was abandoned, in the thirteenth century, as a judi- 
cial practice in ordinary cases, it still maintained its place 
as a special mode of trying those unfortunate persons whom 
their own folly, or the malice and fears of their neighbors, 
pointed out as witches and sorcerers.^ No less than a hun- 
dred years after the efforts of Innocent III. had virtually 
put an end to all the other forms of vulgar ordeals, we 
find Louis Hutin ordering its employment in these cases.* 
At length, however, it fell into desuetude, until the super- 
stitious panic of witchcraft which took possession of the 
popular mind caused its revival in the second half of the 
sixteenth century. In 1487, Sprenger, while treating of 
every possible detail concerning witchcraft and its prosecu- 
tion, and alluding to the red-hot iron ordeal, makes no 
reference whatever to cold water or to the faculty of float- 
ing possessed by witches, thus showing that it had passed 
completely out of remembrance as a test in these cases, both 
popularly and judicially.^ In 1564, Wier discusses it as 
though it were in ordinary use in Western Germany, and 

' Plinii Natur. Histor. L. vii. c. ii. 

2 Ameilhon, de I'Epreuve de I'Eau Froide. 

3 In earlier times, various other modes of proof were habitually resorted 
to. Among the Lombards, King Rotharis prescribed the judicial combat 
(L. Longobard. Lib, I. Tit. xvi. § 2). The Anglo-Saxons (^thelstan. 
cap. VI.) direct the triple ordeal, which was either red-hot iron or boiling 
water. 

4 Regest. Ludovici Hutini [ap. Cangium). 

5 Mall. Maleficarum. 



265 THE ORDEAL. 

mentions a recent case wherein a young girl falsely accused 
was tested in this manner and floated, after which she was 
tortured until the executioner himself wondered at her power 
of endurance. As no confession could be extracted, she 
was discharged, which shows how little real confidence was 
reposed in the ordeal.^ Twenty years later, Scribonius, 
writing in 1583, speaks of it as a novelty, but Neuwald as- 
sures us that for eighteen years previous it had been generally 
employed throughout Westphaliaj^and in 1579 Bod in alludes 
to it as a German fashion which, though he believes in its 
efficacy, he yet condemns as savoring of magic. ^ The crime 
was one so difficult to prove judicially, and the ordeal offered 
so ready and so satisfactory a solution to the doubts of timid 
and conscientious judges, that its resuscitation is not to be 
wondered at. The professed Demonographers, Bodin, 
Binsfeld, Godelmann, and others, opposed its revival for 
various reasons, but still it did not lack defenders. In 1583, 
Scribonius, on a visit to Lemgow, saw three unfortunates 
burnt as witches, and three other women, the same day, 
exposed to the ordeal on the accusation of those executed. 
He describes them as stripped naked, hands and feet bound 
together, right to left, and then cast upon the river, where 
they floated like logs of wood. Profoundly impressed with 
the miracle, in a letter to the magistrates of Lemgow he 
expresses his warm approbation of the proceeding, and en- 
deavors to explain its rationale, and to defend it against 
unbelievers. Sorcerers, from their intercourse with Satan, 
partake of his nature ; he resides within them, and their 
human attributes become altered to his ; he is an imponder- 
able spirit of air, and therefore they likewise become lighter 

' "Wieri de Praestigiis Dsemonum pp. 589, 581. 

2 Scribonii Epist. de Exam. Sagarum. Newald Exegesis Purgat. Saga- 
rum. These tracts, together with Rickius's " Defehsio Probce Aqute 
Frigidi-e," were reprinted in 1686 at Leipsic, in I vol. 4to. 

3 De Magor. Daemonomania, Basil. 1581, pp. 372, 385. 



WITCH-TRIALS. 289 

than water. Two years later, Hermann Neuwald published 
a tract in answer to this, gravely confuting the arguments 
advanced by Scribonius, who, in 1588, returned to the attack 
with a larger and more elaborate treatise in favor of the 
ordeal. Shortly after this, Bishop Binsfeld, in his exhaust- 
ive work on witchcraft, states that the process was one in 
common use throughout Westphalia, and occasionally em- 
ployed in the Rhinelands. He condemns it, however, on 
the score of superstition, and the prohibition of all ordeals 
by the Popes, and concludes that any judge making use of 
it, or any one believing in it, is guilty of mortal sin. Reject- 
ing the explanation of Scribonius, he argues that the floating 
of the witch is caused by the direct interposition of the Devil 
himself, who is willing to sacrifice a follower occasionally 
in order to damn the souls of those who participate in 
a practice condemned by the church.^ Wier, who denied 
witchcraft, while believing in the active interposition of the 
Devil, argues likewise that those who float are borne up by 
demons, but he attributes it to their desire to confirm the 
popular illusions concerning witchcraft.^ Another demon- 
ographer of the period, Godelmann, does not hesitate to say 
that any judge resorting to this mode of proof rendered him- 
self liable to a retaliatory action ; and he substantiates his 
opinion as to the worthlessness of the trial by a case within 
his own experience. In 1588 he was travelling from Prussia 
to Livonia, when at the castle of a great potentate his host 
happened to mention that he had condemned a most wicked 
witch to be burnt the next day. Godelmann, desirous to 
know whether the proof could be relied on, asked whether 
the water ordeal had been tried, and on being answered in 
the negative, urged the experiment. His request was granted, 

1 Binsfeldi Tract, de Confess. Malefic, pp. 287-94 (Ed. 1623). He 
argues that as the proceeding was unlawful, confessions obtained by means 
of it were of no legal weight. 

2 Wieri op. cit. p. 589. 

25 



290 THE ORDEAL. 

and the witch sank like a stone. Subsequently the noble 
wrote to him that he had tried it with six other indubitable 
witches, and that it had failed with all, showing that it was a 
false indication, which might deceive incautious judges.^ 
Oldenkop, on the other hand, relates that he was present 
when some suspected women were tried in this manner, who 
all floated, after which one of the spectators, wholly innocent 
of the crime, to satisfy the curiosity of some nobles who were 
present, allowed himself for hire to be tied and thrown in, 
when he likewise floated and could not be made to sink by 
all the efforts of the officiating executioner.^ In 1594, a more 
authoritative combatant entered the arena — Jacob Rickius, a 
learned jurisconsult of Cologne, who, as judge in the court 
of Bonn, had ample opportunity of considering the question, 
and of putting his convictions into practice. He describes 
vividly the perplexities of the judges hesitating between the 
enormity of the crime and the worthlessness of the evidence, 
and his elaborate discussions of all the arguments in favor of 
the ordeal may be condensed into this: that the offence is 
so difficult of proof that there is no other certain evidence 
than the ordeal; that without it we should be destitute of 
absolute proof, which would be an admission of the supe- 
riority of the Devil over God, and that anything would be 
preferable to such a conclusion. He states that he never 
administered it when the evidence without it was sufficient 
for conviction, nor when there was not enough other proof 
to justify the use of torture; and that in all cases it was em- 
ployed as a prelude to torture — " praeparandum et munien- 
dum torturae viam" — the latter being frequently powerless in 
consequence of diabolical influences. The sickening in- 
stances which he details with much complacency as irrefra- 

1 Godelmanni de Magis Lib. in. cap. v. §^ 30, 35. 

2 P. Burgmeister Dissert, de Probat. per aquam, etc. Ulmae, 1680, ^ 44. 
Burgmeister adopts the explanation of Binsfeld to account for the cases in 
which witches floated. 



WITCH-TRIALS. 29I 

gable proofs of his positions show how frequent and how 
murderous were the cases of its employment, but would 
occupy too much space for recapitulation here ; while the 
learning displayed in his constant citations from the Scrip- 
tures, the Fathers, the Roman and the Canon Law, is in 
curious contrast with the superstitious cruelty of his acts and 
doctrines. 

In France, the central power had to be invoked to put an 
end to the atrocity of such proceedings. In 1588, an appeal 
was taken to the supreme tribunal from a sentence pro- 
nounced by a Champenois court, ordering a prisoner to 
undergo the experiment, and the Parlement, in Derember, 
1601, registered a formal decree against the practice; an 
order which it found necessary to repeat, August 10, 1641.* 
That this latter was not uncalled for, we may assume from 
the testimony of the celebrated Jerome Bignon, who, writing 
nearly at the same time, says that, to his own knowledge, 
within a few years, judges were in the habit of elucidating 
doubtful cases in this manner.^ In England, James I. grati- 
fied at once his conceit and his superstition by eulogizing 
the ordeal as an infallible proof in such cases. His argument 
was the old one, which pronounced that the pure element 
would not receive those who had renounced the privileges of 
their baptism,^ and his authority no doubt gave encourage- 
ment to innumerable instances of cruelty and oppression. In 
Scotland, indeed, the indecency of stripping women naked 
for the immersion was avoided by wrapping them up in a 
sheet before binding the thumbs and toes together, but a 

1 Konigswarter, op. cit, p 176. 

2 <'Porro, nostra memoria, paucis abhinc annis, solebant judices reos 
maleficii accusatos mergere, pro certo habentes incertum crimen hac ratione 
patefieri," — Notse ad Legem _Salicam. 

3 Tanquam aqua suum in sinum eos non admitteret, qui excus'^a baptism! 
aqua se omni illius sacramenli beneficio ultro orbaiunt. — Daemonologiae 
Lib. III. cap. vi. 



292 THE ORDEAL. 

portion of the Bay of St. Andrews is still called the ''Witch 
Pool," from its use in the trial of these unfortunates/ 

How slowly the belief was eradicated from the minds of 
even the educated and enlightened may be seen in a learned 
inaugural thesis presented by J. P. Lang, in 1661, for the 
Licentiate of Laws in the University of Bale, in which, dis- 
cussing incidentally the question of the cold-water ordeal for 
witches, he concludes that perhaps it is better to abstain from 
it, though he cannot question its efficaciousness as a means of 
investigation.'^ In 1662, N. Brant, in a similar thesis offered 
at Giessen, speaks of it as used in some places, chiefly in 
Westphalia, and argues against it on the ground of its uncer- 
tainty.^ P. Burgmeister, in a thesis presented at Ulm in 
1680, speaks of the practice as still continued in West- 
phalia, and that it was defended by many learned men, from 
whose opinions he dissents; among them was Hermann Con- 
ring, one of the most distinguished scholars of the time, who 
argued that if prayers and oaths could obtain the divine inter- 
position, it could reasonably be expected in judicial cases of 
importance.* F. M. Brahra, in 1701, alludes to it as no 
longer in use ;^ but in 1714, J. C. Nehring describes it as 
nearly, though not quite obsolete, and considers it worthy of 
an elaborate discussion. He disapproves of it, though he re- 
cords a case which occurred a few years previously, in which 
a woman accused of witchcraft managed to escape from her 
chains, and went into the water to try herself, and could not 
be submerged. Notwithstanding this he declares that even 
when a prisoner demands the ordeal, the judge who grants 

• Rogers' Scotland, Social and Domestic, p, 266. (Grampian Club, 
1869.) 

2 Dissert. Inaug. de Torturis Th. xviii. § xi. Basil. 1661. 

3 N. Brandt de Legitima Maleficos et Sagas investigandi et convincendi 
ratione, Giessen, 1662. 

4 P. Burgmeister Dissert, de Probat. per aquam ferventem et frigid am, 
§? 29, 39-41, Ulmse, 1680. 

5 F. M. Brahm de Fallacibus Indiciis Magiae, Halae Magdeburg, 1709- 



WITCH-TRTALS. 293 

it is guilty of mortal sin, for the Devil often promises witches 
to save them in this manner, and, though he very rarely 
keeps his promise, still he thus succeeds in retaining men in 
superstitious observances. The success of the ordeal thus is 
uncertain, and his conclusion is that laws must be made for 
the generality of cases, and not for exceptional ones.^ 
Even in the middle of the century, the learned and pious 
Muratori affirms his reverent belief in the miraculous convic- 
tions recorded by the medieval writers as wrought in this 
manner by the judgment of God; and he further informs us 
that it was common in his time throughout Transylvania, 
where witches were very numerous j"'^ while in West Prussia, 
as late as 1745, the Synod of Culm describes it as a popular 
abuse in common use, and stringently forbids it for the 
future.^ 

Although, within the last hundred years, the cold-water 
ordeal has disappeared from the authorized legal procedures of 
Europe, still the popular n.ind has not as yet altogether over- 
come the superstitions and prejudices of so many ages, and 
occasionally in some benighted spot an outrage occurs to 
show us that medieval ignorance and brutality still linger 
amid the triumphs of modern civilization. In 1815 and 1816, 
Belgium was disgraced by trials of the kind performed on 
unfortunates suspected of witchcraft;* and in 1836, the popu- 
lace of Hela, near Dantzic, twice plunged into the sea an 
old woman reputed to be a sorceress, and as the miserable 
creature persisted in rising to the surface, she was pronounced 

' J. C. Nehring de Indiciis, Jense, 1 7 14. 

2 Antiq. Ital. Dissert. 38. 

3 Qui ex levi suspicione, in tali crimine delatas, nee confessas, nee con- 
vietas, ad torturas, supernatationem aquarum, et alia eruendse veritatis 
media, tandem ad ipsani mortem condemnare . . . non verentur, exem- 
pla proh dolor ! plurima testantur. — Synod. Culmens. et Pomesan. ann. 
1745, c. V. (Hartzheim. Concil. German. X. 510.) 

4 Meyer, Institutions Judiciaires, I. 321. 

25* 



294 THE ORDEAL. 

guilty, and was beaten to death. ^ Even in England it is not 
many years since a party of credulous people were prose- 
cuted for employing the water ordeal in the trial of a woman 
whom they believed to be a witch. ^ 

Perhaps we may class as a remnant of this superstition a 
custom described by a modern traveller as universal in 
Southern Russia. When a theft is committed in a household, 
the servants are assembled, and a sorceress, or vorogeia, is 
sent for. Dread of what is to follow generally extorts a 
confession from the guilty party without further proceedings, 
but if not, the vorogeia places on the table a vase of water 
and rolls up as many little balls of bread as there are suspected 
persons present. Then, taking one of the balls, she ad- 
dresses the nearest servant — "If you have committed the 
theft, this ball will sink to the bottom of the vase, as will 
your soul in Hell ; but if you are innocent, it will float on 
the water." The truth or falsehood of this assertion is never 
tested, for the criminal invariably confesses before his turn 
arrives to undergo the ordeal.-^ 

ORDEAL OF THE BALANCE. 

We have seen above that a belief existed that persons 
guilty of sorcery lost their specific gravity, and this supersti- 
tion naturally led to the use of the balance in the effort to 
discover and punish the crime of witchcraft, which all ex- 
perts assure us was the most difficult of all offences on which 
to obtain evidence. The trial by balance, however, was not 
a European invention. Like nearly all the other ordeals, it 
can be traced back to India, where, at least as early as the 
time of Yajnavalkya, it was in common use. He describes 

' Konigswarter, op. cit. p. 177. 

^ Spottiswoode Miscellany, Edinburgh, 1845, H- 41- 
3 Hartausen, Etudes sur la Russie. (Du Boys, Droit Crimiiiel des Peu- 
ples Modernes, I. 256.) 



THE BALANCE. 295 

it as reserved for women, children, old men, invalids, the 
blind, the lame, and the privileged Brahman caste, and not 
to be undertaken unless the question at stake amounted at 
least to the value of a thousand pieces of silver. After pro- 
per ceremonies the patient was placed in one scale, with an 
equivalent weight to counterbalance him in the other, and 
the nicety of the operation is shown by the prescription that 
the beam must have a groove with water in it, evidently for 
the purpose of detecting the slightest deflection either way. 
On ascending the scale the accused addresses an adjuration 
to it, which reminds us vividly of the Christian formulas em- 
ployed by the Church in the administration of the ordeal: — 

''Thou, O balance, art the mansion of truth; thou wast 
anciently contrived by deities: declare the truth, therefore, 
O giver of success, and clear me from all suspicion. 

"If I am guilty, O venerable as my own mother, then 
sink me down; but if innocent, raise me aloft !" 

If he sinks, or if the scales should break, he is convicted ; 
but if he rises, he is acquitted.^ Virtually the same form is 
described by Hiouen Thsang in the seventh century ; and the 
mode by wdiich the trial was considered to operate is to be 
seen in the account given by the Ayeen Akbery, which says 
that the suitor was weighed, and then, after certain religious 
ceremonies, he was weighed again. If his density remained 
stationary he was condemned, but if he lost weight during 
the interval, he was absolved.^ 

It will be seen here that lightness was an evidence of in- 
nocence, but in Europe the ordeal was reversed in conse- 
quence of the belief that sorcerers became lighter than 
water. Rickius, writing in 1594, speaks of this mode of 
trial being commonly used in many places in witchcraft 
cases, and gravely assures us that very large and fat women 

' Asiatic Researches, I. 402-3. 

2 Wheeler's Hist, of India, III. 262. — Ayeen Akbery, II. 486. 



296 THE ORDEAL. 

bad been found to weigh only thirteen or fifteen pounds;^ but 
even this will scarcely explain the modification of the process 
as employed|in some places, which consisted in putting the 
accused in one scale and a Bible in the other.^ Koenigs- 
warter assures us that the scales formerly used on these occa- 
sions are still to be seen at Oudewater in Holland ; and he 
also states that, as late as 1728, at Szegedin in Hungary, 
thirteen persbns suspected of sorcery were, by order of 
court, subjected to the ordeal of cold water, and then to that 
of the balance.^ The use of the Bible as a counterpoise is 
on record as recently as 1759, at Aylesbury in England, 
where one Susannah Haynokes, accused of witchcraft, was 
formally weighed against the Bible in the parish church.* 

THE CROSS. 

The ordeal of the cross {Judiciu7n crucis, stare ad crucem) 
was one of simple endurance. The plaintiff and defendant, 
after appropriate religious ceremonies and preparation, stood 
with uplifted arms before a cross, while divine service was 
performed, victory being adjudged to the one who was able 
longest to maintain his position.^ The earliest allusion to it 
which I have observed occurs in a Capitulary of Pepin-le- 
Bref, in 752, where it is prescribed in cases of application 
by a wife for dissolution of marriage.^ Charlemagne ap- 
pears to have regarded it with much favor, for he not only 
frequently refers to it in his edicts, but, when dividing his 
mighty empire, in 806, he directs that all territorial disputes 

' Rickii Defens. Proboe Aq. Frigidae, § 41. 

2 Collin de Plancy, Diet. Infernal, s. v. Biblioinancie. 

3 Koenigswarter, op. eit. p. 186. 

4 E. B. Tylor in Macmillan's Magazine, July, 1876. 

5 A formula for judgments obtained in this manner by order of court, 
in cases of disputed title to land, occurs in the Formulas Bignonianse, 
No, xii., where the term of forty-two nights is prescribed for the trial. 

6 Capit. rippini ann. 75 ', ^ xvii. 



THE CROSS. 297 

which may arise in the future between his sons shall be 
settled in this manner/ An example occurring during his 
reign shows the details of the process. A controversy be- 
tween the bishop and citizens of Verona, relative to the 
building of certain walls, was referred to the decision of the 
cross. Two young ecclesiastics, selected as champions, 
stood before the sacred emblem from the commencement of 
mass; at the middle of the Passion, Aregaus, who repre- 
sented the citizens, fell lifeless to the ground, while his 
antagonist, Pacificus, held out triumphantly to the end, and 
the bishop gained his cause, as ecclesiastics were wont to 
do.^ 

When a defeated pleader desired to discredit his own com- 
purgators, he had the right to accuse them of perjury, and 
the question was then decided by this process.^ In a similar 
spirit, witnesses too infirm to undergo the battle-trial, by 
which in the regular process of law they were bound to sub- 
stantiate their testimony, were allowed, by a Capitulary of 
816, to select the ordeal of the cross, with the further privi- 
lege, in cases of extreme debility, of substituting a relative 
or other champion, whose robustness promised an easier 
task for the Divine interference.* 

A slight variation of this form of ordeal consisted in stand- 
ing with the arms extended in the form of a cross, while 
certain portions of the service were recited. In this manner 
St. Lioba, Abbess of Bischoffsheim, triumphantly vindicated 
the purity of her flock, and traced out the offender, when 
the reputation of her convent was imperilled by the dis- 

' Chart, Division, cap. xiv. Capit. ann. 779, ^ x. ; Capit. iv. ann. 
803, 1^ iii. vi. ; in L. Longobard. Lib, II, Tit. xxviii. g 3; Tit. Iv. ^ 25, 
etc, 

2 Ughelli Italia Sacra T. V, p. 610 {ap. Baluz. Not. ad Libb. Capit.). 

3 Capit. Car. Mag. incerti anni c, x, (Hartzheim, Concil. German. I. 
426.) 

4 Capit. Lud, Pii ann. 816, \ i. (Eccardi L. Francorum, pp. 183 
184.) 



298 THE ORDEAL. 

covery of a new-born child drowned in a neighboring 
pond.^ 

The sensitive piety of Louis-le-Debonnaire was shocked at 
this use of the cross, as tending to bring the Christian sym- 
bol into contempt, and in 816, soon after the death of Char- 
lemagne, he prohibited its continuance, at the Council of 
Aix-la-Chapelle;^ an order which was repeated by his son, 
the Emperor Lothair.^ Baluze, however, considers, with 
apparent reason, that this command was respected only in 
the Rhenish provinces and in Italy, from the fact that the 
manuscripts of the Capitularies belonging to those regions 
omit the references to the ordeal of the cross, which are 
retained in the copies used in the other territories of the 
Frankish empire.* Louis himself would seem at length to 
have changed his opinion; for, in the final division of his 
succession between his sons, he repeats the direction of 

1 Rudolph. Fuldens. Vitse S. Liobse cap. xv. (Du Cange, s. v. Crucis 
Judichim. 

2 Concil. Aquisgran. cap. xvii. 

3 L. Longobard. Lib. II, Tit. Iv. \ 32. 

* Not. ad Libb. Capit. Lil). I. cap. 103. This derives additional pro- 
bability from the text cited immediately above, relative to the substitution 
of this ordeal for the duel, which is given by Eckhardt from an apparently 
contemporary manuscript, and which, as we have seen, is attributed to 
Louis-le-Debonnaire in the very year of the Council of Aix-la-Chapelle. 
It is not a simple Capitulary, but an addition to the Salic Law, which 
invests it with much greater importance. Lindenbruck (Cod. Legum 
Antiq. p. 355) gives a different text, purporting likewise to be a supple- 
ment to the Law, made in 816, which prescribes the duel in doubtful 
cases between laymen, and orders the ordeal of the cross for ecclesiastical 
causes — " in Ecclesiasticis autem negotiis, crucis judicio rei Veritas inqui- 
ratur" — and allows the same privilege to the " imbecillibus aut infirmis 
qui pugnare non vaient." Baluze's collection contains nothing of the 
kind as enacted in 816, but under date of 819 there is a much longer sup- 
plement to the Salic law, in which cap. x. presents the same general 
regulations, almost verbatim, except that in ecclesiastical affairs the testi- 
mony of witnesses only is alluded to, and \he judiciii7?i crucis is altogether 
omitted. The whole manifestly shows great confusion of legislation. 



THE CORSNiED. 299 

Charlemagne as regards the settlement of disputed bound ^ 
aries/ The procedure, however, appears to have soon lost 
its popularity, and indeed never to have obtained the wide 
and deeply-seated hold on the veneration of the people en- 
joyed by the other forms of ordeal, though there is extant a 
formula for confirming disputed titles to real estate decided 
in this manner.^ We see little of it at later periods, except 
the trace it has left in the proverbial allusion to an experi- 
mentiun crncis. 

In India a cognate mode is adopted by the people of 
Ramgur to settle questions of disputed boundaries between 
villages. When agreement by argument or referees is found 
impossible, each community chooses a champion, and the 
two stand with one leg buried in the earth until weariness or 
the bites of insects cause one of them to yield, when the 
territory in litigation is adjudged to the village of the 
victor.^ 



THE CORSN^D. 

The ordeal of consecrated bread or cheese {judicium 
offce, panis conjuratio, the corsno:d of the Anglo-Saxons) was 
administered by presenting to the accused a piece of bread 
(generally of barley) or of cheese, about an ounce in weight,* 
over which prayers and adjurations had been pronounced. 
After appropriate religious ceremonies, including the com- 
munion, the morsel was eaten, the event being determined 
by the ability of the accused to swallow it. This depended 

* Chart. Uivisionis ann. 837, cap. 10. The words used are identical 
with those of Charlemagne, with the substitution of *' vexiilo crucis" for 
"judicio crucis." The word vexillwn is frequently employed in the sense 
of signtim or testiinonhim in signatures to diplomas. 

2 Meyer, Recueil d'Anciens Textes, Paris, 1874, p. 12. 

3 Sir John Shore, in Asiatic Researches, IV. 362. 

* Half an ounce, according to a formula in a MS. of the ninth century, 
printed by Dom Gerbert (Migne's Patrolog. CXXXVIII. 1142). 



300 THE ORDEAL. 

of course on the imagination, and we can readily understand 
how, in those times of faith, the impressive observances 
which accompanied the ordeal would affect the criminal, 
who, conscious of guilt, stood up at the altar, took the sacra- 
ment, and pledged his salvation on the truth of his oath. 
The mode by which a conviction was expected may be 
gathered from the forms of the exorcism employed, of which 
a number have been preserved. 

''O Lord Jesus Christ, .... grant, we pray thee, by thy 
holy name, that he who is guilty of this crime in thought or 
in deed, when this creature of sanctified bread is presented 
to him for the proving of the truth, let his throat be nar- 
rowed, and in thy name let it be rejected rather than de- 
voured. And let not the spirit of the Devil prevail in this to 
subvert the judgment by false appearances. But he who is 
guilty of this crime, let him, chiefly by virtue of the body 
and blood of our Lord which he has received in communion, 
when he takes the consecrated bread or cheese tremble, and 
grow pale in trembling, and shake in all his limbs; and let 
the innocent quietly and healthfully, with all ease, chew and 
swallow this morsel of bread or cheese, crossed in thy holy 
name, that all may know that thou art the just Judge," &c.^ 

And even more whimsical in its devout impiety is the fol- 
lowing: — 

*'0 God Most High, who dwellest in Heaven, who 
through thy Trinity and Majesty hast thy just angels, send, 
O Lord, thy Angel Gabriel to stick in the throat of those 
who have committed this theft, that they may neither chew 
nor swallow this bread and cheese created by Thee. I in- 
voke the patriarchs, Abraham, Isaac, and Jacob, with twelve 
thousand Angels and Archangels. I invoke the four Evan- 
gelists, Matthew, Mark, Luke, and John. I invoke Moses 
and Aaron, who divided the sea. That they may bind to 
their throats the tongues of the men who have committed 
this theft, or consented thereto. If they taste this bread and 
cheese created by Thee, may they tremble like a trembling 
tree, and have no rest, nor keep the bread and cheese in 

1 Baluze II. 655. 



THE CORSN^D. 30I 

their mouths ; that all may know Thou art the Lord, and 
there is none other but Thee!"^ 

Yet Boccaccio's story of Calendrino, which turns upon the 
mixing of aloes with the bread administered in the corsnced, 
perhaps affords a more rationalistic explanation of the ex- 
pected miracle.'^ 

A striking illustration of the superstitions connected with 
this usage is found in the story related by most of the English 
chroniclers concerning the death of the powerful Godwin, 
Duke of Kent, father of King Harold, and in his day the 
king-maker of England. As he was dining with his royal 
son-in-law, Edward the Confessor, some trivial circumstance 
caused the king to repeat an old accusation that his brother 
Alfred had met his death at Godwin's hands. The old but 
fiery duke, seizing a piece of bread, exclaimed: "May God 
cause this morsel to choke me if I am guilty in thought or 
in deed of this crime !" Then the king took the bread and 
blessed it, and Godwin, putting it in his mouth, was suffo- 
cated by it, and fell dead.^ A poetical life of Edward the 

• Muratori, Antiq. Ital. Dissert. 38. 

2 Decam. Giorn. viii. Nov. 6. 

•* This account, with unimportant variations, is given by Roger of Wen- 
dover, ann. 1054, Matthew of Westminster, ann. 1054, the Chronicles of 
Croyland, ann. 1053, Henry of Huntington, ann. 1053, and William of 
Malmesbury, Lib. ii. cap. 13 ; which shows that the legend was widely 
spread and generally believed, although the Anglo-Saxon Chronicle, ann. 
1052, and Roger de Hoveden, ann. 1053, in mentioning Godwin's death, 
make no allusion to its being caused in this manner. A similar reticence 
is observable in an anonymous Life of Edward (Harleian MSS. 526, 
p. 408 of the collection in M. R. Series), and although this is perhaps the 
best authority we have for the events of his reign, still the author's par- 
tiality for the family of Godwin renders him not altogether beyond suspi- 
cion. 

No great effort of scepticism is requisite to suggest that Edward, tired 
of the tutelage in which he was held, may have made way with Godwin 
by poison, and then circulated among a credulous generation the story re- 
lated by the annalist. 
26 



302 THE ORDEAL. 

Confessor, written in the thirteenth century, gives a graphic 
picture of the death of the duke and the vengeful triumph 
of the king: — 

" L'aleine e parole pert 
Par le morsel ki ferm. s'ahert. 
Morz est li senglant felun; 
Mut out force la benaicun, 
Ke duna a mors vertu, 
Par una la mort provee fn. 
*Atant' se escrie li rois, 
'Treiezhors ceu chen punois.' "^ 

This form of ordeal never obtained the extended influence 
which characterized some of the other modes, and it seems 
to have been chiefly confined to the populations allied to the 
Saxon race. In England, before the Conquest, it was en- 
joined on the lower orders of the clergy,^ and it may be 
considered as a plebeian mode of trial, rarely rising into 
historical importance. Its vitality, however, is demonstrated 
by the fact that Lindenbruck, writing in 1613, states that it 
was then still in frequent use.^ 

Aimoin relates a story which, though in no sense judicial, 
presents us with a development of the same superstition. A 
certain renowned knight named Arnustus unjustly occupied 
lands belonging to the Benedictine Abbey of Fleury. Dining 
at the usurped property one day, and boasting of his con- 
tempt for the complaints of the holy monks, he took a pear 
and exclaimed — "I call this pear to witness that before the 
year is out I will give them ample cause for grumbling." 
Choking with the first morsel, he was carried speechless to 
bed, and miserably perished unhouselled, a warning to evil- 
doers not to tempt too far the patience of St. Benedict.* 

' Lives of Edward the Confessor, p. 119 (M, R. Series). 

2 Dooms of Ethelred, ix. ^ 22; Cmit. Eccles. Tit. v. 

3 Alium examinis modum, nostro etiamnunc sseculo, saepe malo mode 
usitatum. — Cod. Legum Antiq. p. 1418. 

4 De Mirac. S. Benedicti. Lib. i. c. v. 



THE CORSN.ED. 303 

Stories such as this are by no means uncommon, and are in- 
teresting as a picture of the times, when they were reverently 
received, and formed a portion of the armory by wKich the 
weak defended themselves against the strong. Of kindred 
nature is an occurrence related about the year 1090, when 
Duke Henry of Limburg was involved in a quarrel with 
Engilbert, Archbishop of Treves, and treated with contempt 
the excommunication and anathema inflicted upon him. 
Joking upon the subject with his followers one day at dinner, 
he tossed a fragment of food to his dog, remarking that if 
the animal ate it, they need not feel apprehensive of the 
episcopal curse. The dog refused the tempting morsel, 
though he manifested his hunger by eagerly devouring food 
given him by another hand, and the duke, by the advice of 
his counsellors, lost no time in reconciling himself with his 
ghostly adversary. This is the more remarkable, as Engil- 
bert himself was under excommunication by Gregory VII. , 
being a stanch imperialist, who had received his see from 
Henry IV. and his pallium from the antipope Guiberto.^ 

In India, this ordeal is performed with a kind of rice 
called sathecy prepared with various incantations. The per- 
son on trial eats it, with his face to the East, and then spits 
upon a peepul leaf. " If the saliva is mixed with blood, or 
the corners of his mouth swell, or he trembles, he is de- 
clared to be a liar.'"^ A slightly different form is described 
for cases in which several persons are suspected of theft. 
The consecrated rice is administered to them all, is chewed 
lightly, and then spit out upon a peepul leaf. If any one 
ejects it either dry or tinged with blood, he is adjudged 
guilty.' 

Based on the same theory is a ceremony performed by the 
pre-Aryan hill-tribes of Rajmahal, when swearing judges into 
office preparatory to the trial of a case. In this a pinch of 

' Gesta Treverorum, continuat. i. (Migne's Patrol. CLIV. 1205-6.) 

2 Ayeen Akbery, II. 498. 

3 Ali Ibrahim Khan (Asiatic Researches, I. 391-2). 



304 THE ORDEAL. 

salt is placed upon a tulwar or scimitar, and held over the 
mouth of the judge, to whom is addressed the adjuration, 
'* If thou decidest contrary to thy judgment and falsely, may 
this salt be thy death !" The judge repeats the formula, 
and the salt is washed with water into his mouth. ^ 



THE EUCHARIST. 

From ancient times in India there has been in common 
use an ordeal known as cosha, consisting of water in which 
an idol has been washed. The priest celebrates solemn 
rites "to some tremendous deity" whose image is then 
bathed in water. Three handfuls of this water are then 
drunk by the accused, and if within fourteen days he is not 
visited with some dreadful calamity from the act of the deity 
or of the king, ''he must indubitably be acquitted.''^ 

In adapting the ordeal system to Christianity the natural 
substitute for this pagan ceremony was the administration of 
the Eucharist. This, indeed, formed a portion of the pre- 
paratory rites in all the judgments of God, the Host being 
given with the awful adjuration, ''May this body and blood 
of our Lord Jesus Christ be a judgment to thee this day!" 
The apostle had said that " he that eateth and drinketh un- 
worthily eateth and drinketh damnation to himself" (I. Co- 
rinth. XI. 28, 29), and the pious veneration of the age 
accepted the admonition literally. Medieval literature is 
full of legends showing the miraculous power of the Eu- 
charist in bringing sinners to repentance and exposure, even 
without any special invocation ; and the absolute belief in 
this fetishism, even by the irreligious, is fairly illustrated by 
the case of a dissolute priest of Turgau, in the fourteenth 
century. An habitual drunkard, gambler, and fornicator, 
he yet celebrated mass daily with exemplary regularity. On 

' Lieut. Shaw in As. Researches, IV. 80. 
2 Yajnavalkya (Ibid. I. 404). 



THE EUCHARJST. 305 

being warned of the dangers to which he was thus exposing 
himself in partaking of the Eucharist, he at length confessed 
that he never consecrated the host, but that he carried about 
him a small round piece of wood, resembling the holy wafer, 
which he exhibited to the people and passed it off for the 
body of Christ. The honest chronicler fairly explodes with 
indignation in relating the subterfuge, and assures us that 
while the priest succeeded in escaping one danger he fell 
into a much greater, as he was the cause of leading his flock 
into the unpardonable sin of idolatry. Apparently his pa- 
rishioners thought so too, for though they had patiently 
endured the scandals of his daily life, as soon as this trick 
became known they drove him away unceremoniously.^ 
What this pastor, but for his ingenious device, might have 
reasonably dreaded is to be learned from the story of a 
volunteer miracle vouchsafed to an unchaste priest at Lindis- 
farne, who being suddenly summoned to celebrate mass 
without having had time to purify himself, wdien he came to 
partake of the sacramental cup, saw the wine change to an 
exceeding blackness. After some hesitation he took it, and 
found it bitter to the last degree. Hurrying to his bishop, 
he confessed his sin, underwent penance, and reformed his 
life.'^ Even more edifying was a case related as happening 
in France about the year 1200. A priest yielded to the 
temptations of the flesh immediately before celebrating mass 
on Christmas eve, when, after consecrating the body and 
blood, and before he could touch them with his polluted 
lips, a white dove appeared which drank the wine and car- 
ried off the wafer. It happened that he could find no one, 
to replace him during the ceremonies of the festival, and, 
though appalled by the miracle, he could not refuse to per- 
form his functions without exposure, so that a second and a 
third time he went through the canon with the same result. 

1 Vitodurani Chron. ann. 1336, p. 45. (Thes. Hist. Helvet.) 

2 Roger of Wendover, ann. 1051. 

26* 



3o6 THE ORDEAL. 

Finally he applied to an abbot, and confessed his sin with 
due contrition. The abbot postponed inflicting penance 
until the priest should officiate again, when the dove reap- 
peared, bearing in its beak the three wafers, and returning 
to the chalice all the wine it had taken. Filled with rejoic- 
ing at this evidence that his contrition was accepted, the 
priest cheerfully undertook three years' pilgrimage in the 
Holy Land, prescribed for him by the abbot, and on his 
return entered a convent.^ 

A still more striking manifestation of the interposition of 
God by means of the Eucharist to vindicate innocence is to 
be found in the case of Erkenbald de Burban, a noble of 
Flanders, who was renowned for his inflexible administra- 
tion of justice. While lying on his death-bed, his favorite 
nephew and heir endeavored to violate one of the maidens 
of the castle. Erkenbald ordered him to be hanged, but his 
followers were afraid to execute the sentence ; so, when after 
an interval, the youth approached his uncle for a reconcilia- 
tion, the latter put his arm affectionately round his neck, 
and drove a dagger up to the hilt in his throat. Wh^n 
Erkenbald made his final confession preparatory to the last 
sacrament, he refused to include this deed among his sins, 
claiming that it was an act of righteousness, and his bishop 
consequently refused to administer the Host. The dying 
man obdurately allowed him to depart; then ordering him 
recalled, asked him to see whether he had the wafer in his 
pyx. On the latter being opened it was found empty, and 
Erkenbald exhibited it to him in his mouth. The Eucharist 
which man had refused, God had ministered to the righteous 
judge. ^ 

It is, therefore,' easy to understand the superstition of the 
ages of faith which believed that, when the consecrated wafer 
was offered under appropriate adjurations, the guilty could 
not receive it; or that, if it were taken, immediate convul- 

• Caesar. Heisterbacens. Dial. Miiac. Dist.TI. c. v. 
2 Ibid. Dist. IX. c. xxxviii. 



THE EUCHARIST. 307 

sions and speedy death, or some other miraculous manifesta- 
tion would ensue, thus constituting its administration for such 
purposes a regular and recognized form of ordeal. This is 
well illustrated by a form of exorcism preserved by Mansi : 
" We humbly pray thy Infinite Majesty that this priest, if 
guilty of the accusation, shall not be able to receive this 
venerated body of thy Son, crucified for the salvation of all, 
and that what should be the remedy of all evil shall prove 
to him hurtful, full of grief and suffering, bearing with it all 
sorrow and bitterness."^ What might be expected under 
such circumstances is elucidated by a case which occurred in 
the early part of the eleventh century, as reported by the 
contemporary Rodolphus Glaber, in which a monk, con- 
demned to undergo the trial, boldly received the sacrament, 
when the Host, indignant at its lodgment in the body of so 
perjured a criminal, immediately slipped out at the navel, 
white and pure as befoie, to the immense consternation of 
the accused, who forthwith confessed his crime. ^ 

The antiquity of this mode of trial is shown in its employ- 
ment by Cautinus, Bishop of Auvergne, towards the close of 
the sixth century. A certain Count Eulalius was popularly 
accused of parricide, whereupon he was suspended from 
communion. On his complaining of thus being punished 
without a trial, the bishop administered the sacrament under 
the customary adjuration, and Eulalius, taking it without 
harm, was relieved from the imputation.^ It was usually, 
however, a sacerdotal form of purgation, as is shown by the 
Anglo-Saxon laws,* and by the canons of the Councils of 
Tribur and Worms directing its employment, in all cases of 
ecclesiastics charged with crimes, to relieve them from the 
necessity of taking oaths. ^ Thus, in 941, Frederic, Arch- 

' Baluz. et Mansi Miscell. II. 575. 2 Lib. v. cap. i. 

3 Greg. Turon. Hist. Lib. x. cap. 8. 
1 Dooms of Ethelred, x. ^ 20; Cnut. Eccles. Tit. v. 
5 Can. Statuit quoque. Cans, ii, quaest. v. — Concil. Vormat. ann. 868. 
can. 15. 



3o8 THE ORDEAL. 

bishop of Mainz, publicly submitted to an ordeal of this 
kind, to clear himself of the suspicion of having taken part 
in an unsuccessful rebellion of Henry, Duke of Bavaria, 
against his brother, Otho the Great/ After the death of 
Henry, slander assailed the fame of his widow, Juthita, on 
account of an alleged intimacy between her and Abraham, 
Bishop of Frisingen, When she, too, died, the bishop per- 
formed her funeral rites, and, pausing in the mass, he ad- 
dressed the congregation : "If she was guilty of that whereof 
she was accused, may the Omnipotent Father cause the body 
and blood of the Son to be my condemnation to just perdi- 
tion, and perpetual salvation to her soul!" — after which he 
took the sacrament unharmed, and the people acknowledged 
the falsity of their belief.^ In 1050, Subico, Bishop of 
Speyer, sought to clear himself of a similar accusation at the 
Council of Mainz, in the same manner, when according to 
one version he succeeded, while another less friendly account 
assures us that his jaw became paralyzed in the very act, and 
remained so till the day of his death. ^ 

Perhaps the most striking instance recorded of its admin- 
istration was, however, in a secular matter, when in 869 it 
closed the unhappy controversy between King Lothair and 
his wives, to which reference has been already made. To 
reconcile himself to the Church, Lothair took a solemn oath 
•before Adrian II. that he had obeyed the ecclesiastical man- 
dates in maintaining a complete separation from his pseudo- 
wife Waldrada, after which the pontiff admitted him to 
communion, under an adjuration that it should prove the 
test of his truthfulness. Lothair did not shrink from the 
ordeal, nor did his nobles, to whom it was given on their 
declaring that they had not abetted the designs of the con- 
cubine; but, leaving Rome immediately afterwards, the 

' Reginonis Continuat. ann. 941. 

2 Dithmari Chron. Lib. li. 

3 Hist. Archiep. Bremens. ann. 105 1. Lambert. Hersfeld. ann. 1050. 
Hartzheim. Concil. German. III. 112. 



THE EUCHARIST. 309 

royal cortege was stopped at Piacenza by a sudden epidemic 
which broke out among the courtiers, and there Lothair died, 
August 8th, with nearly all of his followers — an awful ex- 
ample held out by the worthy chroniclers as a warning to 
future generations.^ 

In this degradation of the Host to the level of daily life 
there was a profanity which could hardly fail to disgust a 
reverential mind, and we are therefore not surprised to find 
King Robert the Pious, in the early part of the eleventh 
century, raising his voice against its judicial use, and threat- 
ening to degrade the Archbishop of Sens for employing it in^ 
this manner, especially as his biographer informs us that the 
custom was daily growing in favor.^ Robert's example was 
soon afterwards imitated by Alexander II., whose pontificate 
lasted from 106 1 to 1073.'^ The next pope, however, the 
impetuous Hildebrand, made use of it on a memorable 
occasion. When, in 1077, the unhappy Emperor Henry IV. 
had endured the depths of humiliation before the castle gate 
of Canosa, and had at length purchased peace by submitting 
to all the exactions demanded of him, the excommunication 
under which he had lain was removed in the chapel. Then 
Gregory, referring to the crimes imputed to himself by the 
emperor's partisans, said that he could easily refute them by 
abundant witnesses; "but lest I should seem to rely rather 
on human than on divine testimony, and that I may remove 
from the minds of all, by immediate satisfaction, every 
scruple, behold this body of our Lord which I am about to 
take. Let it be to me this day a test of my innocence, and 
may the Omnipotent God this day by his judgment absolve 
me of the accusations if I am innocent, or let me perish by 
sudden death if guilty!" Swallowing the wafer, he turned 
to the emperor, and demanded of him the same refutation of 
the charges urged against him by the German princes. Ap- 

' Regino ann. 869; Annal. Bertiniani. 
2 Helgaldi Epitome Vitse Robert! Regis. 
^ Duclos, Memoire sur les Epreuves. 



3IO THE ORDEAL. 

palled by this unexpected trial, Henry in an agony of fear 
evaded it, and consulted hurriedly with his councillors how 
to escape the awful test, which he finally declined on the 
ground of the absence of both his friends and his enemies, 
without whose presence the result would establish nothing.^ 
In estimating the mingled power of imagination and con- 
science which rendered the proposal insupportable to the 
emperor, we must allow for the influence which a man like 
Hildebrand with voice and eye can exert over those whom 
he wishes to impress. At an earlier stage of his career, in 
1055, he improvised a very effective species of ordeal, when 
presiding as papal legate at the Council of Lyons, assembled 
for the repression of simony. A guilty bishop had bribed 
the opposing witnesses, and no testimony was obtainable for 
his conviction. Hildebrand addressed him: '* The episcopal 
grace is a gift of the Holy Ghost. If, therefore, you are 
innocent, repeat, 'Glory to the Father, and to the Son, and 
to the Holy Ghost!'" The bishop boldly commenced, 
*' Glory to the Father, and to the Son, and to — " here his 
voice failed him, he was unable to finish the sentence; and, 
confessing the sin, he was deposed.^ 

Henry's prudence in declining the Eucharistic ordeal was 
proved by the fate of the unfortunate Imbrico, Bishop of 
Augsburg, who, in the same year, 1077, after swearing fealty 
to Rodolph of Suabia, abandoned him and joined the empe- 
ror. Soon after, while saying mass before Henry, to prove 
the force of his loyal convictions, he declared that the sacra- 
ment he was about to take should attest the righteousness of 
his master's cause; and the anti- imperialist chronicler duly 
records that a sudden disease overtook him, to be followed by 
speedy death. ^ In the case of William, Bishop of Utrecht, 

• Lambert. Hersfeld. aim, 1077. 

2 This anecdote rests on good authority. Peter Damiani states that he 
had it from Hildebrand himself (Opusc. xix. cap. vi.), and Calixtus II. 
was in the habit of relating it (Pauli Bernried. Vit. Greg. VII. No. ii). 
' Bernald. Constant. Chron. ann. 1077. 



THE LOT. 311 

as related by Hugh of Flavigny, the Eucharist was less an 
ordeal than a punishment. He dared, at the Assembly of 
Utrecht, in 1076, to excommunicate Gregory, at the com- 
mand of Henry IV. ; but when, at the conclusion of the im- 
pious ceremony, he audaciously took the Host, it turned to 
fire within him, and, shrieking ''I burn! I burn!" he fell 
down and miserably died.^ 

According to a Spanish theologian in the sixteenth cen- 
tury, when the Eucharist was administered as an ordeal it 
was to be taken without previous sacramental confession — pre- 
sumably in order that the accused might not escape in conse- 
quence of absolution.^ After the Reformation, the Protestants 
who denied the real presence naturally rejected this form of 
ordeal, but Delrio, writing in 1599, compares them to frogs 
swelling themselves against an elephant ; and Peter Kluntz, 
in 1677 assures us that it was still commonly used in his day. ^ 

THE LOT. 

The appeal to chance, as practised in India, bears several 
forms, substantially identical in principle. One mode con- 
sists in writing the words dherem (consciousness of innocence) 
and adherem (its opposite) on plates of silver and lead re- 
spectively, or on pieces of white and black linen, which are 
placed in a vessel that has never held water. The person 
whose cause is at stake inserts his hand and draws forth one 
of the pieces, when if it happens to be dherem it proves his 
truth.* Another method is to place in a vessel a silver image 
of Dharma, the genius of justice, and one in iron or clay of 

1 Hugon. riaviniac. Chron. Lib. ii. ann. 1080. — Lambert. Hersfeld. 
ann. 1076. 

2 Ciruelo, Reprovacion de las Supersti clones, P. ii. cap. vii. Barcelona 
1628. The first edition appeared in 1539 at Salamanca. 

3 Delrio Disquis. Magic. L. iv. c. iv. q. 3. — P. Kluntz Dissert, de Pro- 
bat, per S. Eucharist. Ulmse 1677. 

4 Ayeen Akbery, II. 498. This form of ordeal is allowed for all the 
four castes. 



312 THE ORDEAL. 

Adharma; or else a figure of Dharma is painted on white 
cloth and another on black cloth, and the two are rolled 
together in cow-dung and thrown into a jar, when the accused 
is acquitted or convicted according to his fortune in drawing 
Dharma.* 

In adapting to Christian usage the ordeal of the lot, at- 
tempts were made to invest it with similar sacred symbolism, 
but it was not well adapted to display the awful solemnity 
which rendered the other forms so impressive. Notwith- 
standing the ample warrant for it in Scripture, it was there- 
fore in less favor with the church, and it seems not to have 
retained among the people, after their conversion, the wide- 
spread popularity and confidence enjoyed by the other 
ordeals. Indeed, as a judicial process, it is only to be found 
prescribed in the earlier remains of the Barbarian laws and 
customs, and no trace of it is to be met with in the later 
legislation of any race. Thus mention of it is made in the 
Ripuarian code,"^ and in some of the earlier Merovingian 
documents its use is prescribed in the same brief manner.^ 
As late as the middle of the eighth century, Ecgberht, Arch- 
bishop of York, quotes from the canons of an Irish Council 
a direction for its employment in cases of sacrilegious theft, 
as a means of determining the punishment to be inflicted;* 
but not long after, the Council of Calchuth condemned the 
practice between litigants as a sacrilege and a remnant of 
paganism.^ 

1 Ali Ibrahim Khan (As. Researches I. 392). 

2 Ad ignem seu ad sortem se excusare studeat. — Tit. xxxi. ^ 5. 

3 Pact. Childeberti et Chlotarii, ann. 593, § 5. *' Et si dubietas est, 
ad sortem ponatur." Also ^8: "Si litus de quo inculpatur ad sortem 
ambulaverit." As in § 4 of the same document the ceneum or hot-water 
ordeal is provided for freemen, it is possible that the lot was reserved for 
slaves. This, however, is not observed in the Decret. Chlotarii, ann. 
595, \ 6, where the expression, " Si de suspicione inculpatur, ad sortem 
veniat," is general in its application, without reservation as to station. 

4 Ecgberti Excerpt, cap. Ixxxiv. (Thorpe, II. 108). 

5 Cone. Calchuth. can. 19 (Spelman. Concil. Brit. I. 300). 



THE LOT. 313 

No explanation is given of the details of the process by 
which this appeal to fortune was made, and I know of no 
contemporary applications by which its formula can be inves- 
tigated ; but in the primitive Frisian laws there is described 
an ordeal of the lot, which may reasonably be assumed to 
show us one of the forms in use. When a man was killed 
in a chance-medley and the murderer remained unknown, 
the friends had a right to accuse seven of the participants in 
the brawl. Each of these defendants had then to take the 
oath of denial with twelve conjurators, after which they were 
admitted to the ordeal. Two pieces of twig, precisely simi- 
lar, were taken, one of which was marked with a cross; they 
were then wrapped up separately in white wool and laid on 
the altar; prayers were recited, invoking God to reveal the 
innocence or guilt of the party, and the priest, or a sinless 
youth, took up one of the bundles. If it contained the 
marked fragment, the defendants were absolved ; if the un- 
marked one, the guilty man was among them. Each one 
then took a similar piece of stick and made a private mark 
upon it ; these were rolled up as before, placed on the altar, 
taken up one by one, and unwrapped, each man claiming 
his own. The one whose piece was left to the last was pro- 
nounced guilty, and was obliged to pay the wer-gild of the 
murder.^ The various modes of ecclesiastical divination, so 
frequently used in the Middle Ages to obtain an insight into 
the future, sometimes assumed the shape of an appeal to 
Heaven to decide questions of the present or of the past.^ 

1 L. Frision. Tit. xiv. |^ 1,2, This may not improbably be derived 
from the mode of divination practised among the ancient Germans, as de- 
scribed by Tacitus, De Moribus German, cap. x. 

2 When used for purposes of divining into the future, these practices 
were iorhidden. Thusy~as early as 465, the Council of Vannes denounced 
tho^&'^mxo "sub nomine fictse religionis quas sanctorum sortes vocant divi- 

Trtationis scientiam profitentur, aut quarumcumque scripturarum inspectione 
futura promittant," and all ecclesiastics privy to such proceedings were to 
be expelled from the church. (Concil. Venet. can. xvi.) This canon is 
27 



314 THE ORDEAL. 

Thus, when three bishops, of Poitiers, Arras, and Autun, 
each claimed the holy relics of St. Liguaire, and human 
means were unavailing to reconcile their pretensions, the 
decision of the Supreme Power was resorted to, by placing 
under the altar-cloth three slips with their respective names 
inscribed, and after a becoming amount of prayer, on with- 
drawing one of them, the see of Poitiers was enriched with 
the precious remains by Divine favor.^ 

At least on the surface, it was a pure appeal to chance 
that was made by the pious monks of Abingdon, about the 
middle of the tenth century, to determine their right to the 
meadows of Beri against the claims of some inhabitants of 
Oxfordshire. For three days, with fasting and prayer, they 
implored the Divine Omnipotence to make manifest their 
right; and then, by mutual assent, they floated on the 
Thames a round buckler, bearing a handful of wheat, in 
which was stuck a lighted taper. The sturdy Oxonians 
gaped at the spectacle from the distant bank, while a depu- 
tation of the more prudent monks followed close upon the 
floating beacon. Down the river it sailed, veering from 
bank to bank, and pointing out, as with a finger, the various 

repeated in the Council of Agde in 506, where the practice is denounced 
as one "quod maxime fidem catholicse religionis infestat" (Cone. Aga- 
thens. can. xlii.); and a penitential of about the year 800 prescribes three 
years' penitence for such acts. — Ghaerbaldi Judicia Sacerdotalia c. 29 
(Martene Ampl. Coll. VII. 33). 

* Baldric. Lib. I. Chron. Camerac. cap. 21. (Du Cange, s. v. Soj^s.) — • 
In this the bishops were guilty of no contravention of ecclesiastical rules. 
That such trials were allowed by the canon law, when properly conducted 
for appropriate purposes, is shown by Gratian, Decret. Caus. 26, q, 2, can. 
3, 4. The most extraordinary application, however, is that by which, 
under the Spanish Wisigoths, episcopal elections were sometimes decided. 
The second Council of Barcelona, in 599, directs that two or three candi- 
dates shall be chosen by the clergy and people, and from among these the 
metropolitan and suffragan bishops shall select by lot, "quem sors, prae- 
unte episcoporum jejunio, Christo domino terminante, monstraverit, bene- 
dictio consecrationis accumulet." — (Concil. Barcinon. II. can. iii.) This 
is evidently suggested by the election of Matthias (Acts. I. 26). 



BIER-RIGHT. 315 

possessions of the Abbey, till at last, on reaching the dis- 
puted lands, it miraculously left the current of the stream, 
and forced itself into a narrow and shallow channel, which 
in high water made an arm of the river around the meadows 
in question. At this unanswerable decision, the people with 
one accord shouted "Jus Abbendoniae, jus Abbendoniae !" 
and so powerful was the impression produced, that the worthy 
chronicler assures us that thenceforth neither king, nor duke, 
nor prince dared to lay claim to the lands of Beri; showing 
conclusively the wisdom of the abbot who preferred thus to 
rely upon his right rather than on mouldy charters or dila- 
tory pleadings.^ 

A more prosaic form of the ordeal of chance is the trial 
by Bible and key still in common use in England, where it 
may even yet " be met with in many an out-of-the way-farm- 
house." In cases of theft a key is secured at Psalm 50, 18 : 
^' When thou sawest a thief, then thou consentedst with him, 
and hast been partaker with adulterers;"^ and the mode in 
which it is expected to reveal guilt is manifested in a case 
recorded in the London Times as occurring at Southampton 
in 1867, where a sailor boy on board a collier was brought 
before court on a charge of theft, the only evidence against 
him being that afforded by securing a key in a Bible oppo- 
site the first chapter of Ruth. Tlie Bible was then swung 
round while- the names of several suspected persons were 
repeated, and on the mention of the prisoner's name the 
book fell on the floor. The credulity of Indian or of me- 
dieval belief could surely go no farther than this. 

BIER-RIGHT. 

The superstition that, at the approach of a murderer, the 
body of his victim would bleed, or give some other mani- 

' Hist. Monast. de Abingdon Lib. i. (M. R. Series I. 89.) 
E. B, Tylor on Ordeals and Oaths (Macmillan's Mag. July, 1876). 



3l6 THE ORDEAL. 

festation of recognition, is one of ancient origin, and, under 
the name of "bier-right," has been made a means of in- 
vestigation and detection. Shakspeare introduces it, in King 
Richard III., where Gloster interrupts the funeral of Henry 
VI., and Lady Anne exclaims: 

" O gentlemen, see, see ! dead Henry's wounds 
Open their congealed mouths, and bleed afresh." 

I have found no trace of this belief in the early customs of 
the Eastern Aryans, but a cognate superstition existing among 
the Jews would indicate that perhaps it is of Semitic origin, 
and that we may have derived it from that source. It is, or 
was, a Jewish custom to ask pardon of a corpse for any of- 
fences committed against the living man, and in this cere- 
mony the offender lays hold of the great toe of the body as 
it lies in the coffin. If he has been guilty of inflicting some 
grievous injury on the deceased, it is said to be not uncommon 
for the latter to respond to the touch by a copious hemor- 
rhage from the nose.^ This, it will be observed, is almost 
identical with the well-known story which relates that, when 
Richard Coeur-de-Lion hastened to the funeral of his father, 
Henry II., and met the procession at Fontevraud, the blood 
poured from the nostrils of the dead king, whose end he 
had hastened by his disobedience and rebellion.'"^ 

When used as an ordeal in the medieval period this test 
seems to have possessed a peculiar power in bringing to light 
the hidden wickedness of Jews. In 1261, at Forchheim, a 
manifestation of this kind brought home to the criminals the 
responsibility for the lingering death of a young girl slain by 
the Jews according to their hellish practice, and the guilty 
were promptly broken on the wheel. ^ A still more notable 

1 Gamal. ben Pedahzur's Book of Jewish Ceremonies, London, 1738, 
p. II. 

2 Roger de Hoveden, ann. 11 86; Roger of Wendover; Benedict! Ab- 
batis Gest. Henr, 11. ann. 1189. 

3 Alphonsi de Spina P'ortalicii Fidei Lib. ni. consid. vii. 



BIER-RIGHT. 317 

instance of its application occurred in 1331 at Ueberlingen 
in Suabia. The body of a child of one of the burghers was 
found in a pond, and from certain wounds the populace 
recognized that Jewish fanaticism had caused its murder. 
The corpse was accordingly carried around in front of the 
houses of the principal Jews, and when its wounds began to 
bleed, no further evidence was thought necessary. In spite 
of the efforts of the magistrate, bought with Hebrew gold, 
the people forthwith set about visiting condign punishment on 
the guilty. All the Jews of the place were skilfully decoyed 
into a large stone house, and when they had been securely 
locked lip in the upper stories a huge fire was kindled below. 
Those that succeeded in throwing themselves from the roof 
were immediately dispatched by the surrounding mob, and 
the rest, to the number of three hundred, were consumed by 
the avenging flames. The justice of the proceeding was 
satisfactorily proved by sundry miracles vouchsafed by the 
approbation of Heaven ; and yet the godless Emperor, Louis 
of Bavaria, had the temerity to punish the pious townsfolk by 
dismantling their walls and levying a heavy fine upon them.^ 
The celebrated jurist Hippolito dei Marsigli, who died in 
1528, relates that in his youth he was governor of Alberga, 
near Genoa, when a murder occurred without trace of the 
guilty one. By the advice of an old citizen of the place, he 
had the body brought before him, and summoned all who 
were suspected of the crime to pass near it one by one. 
When the homicide approached, to the surprise of Marsigli, 
the wounds burst out afresh, but even then he did not con- 
sider the evidence sufficient to warrant an arrest, until he 
had collected sufficient external proof, when the criminal 
confessed his guilt without torture. Marsigli relates the case 
as a very wonderful one; he evidently placed no confidence 
in the ordeal, and it was a novelty to him.^ 

' Vitoduvani Chron. ann. 1331. (Thes. Hist. Helvet.) 
2 Marsil. Pract. Criminal, (ap. Binsfeld, de Confess. Maleficar. p. 
III-12). 

27* 



3l8 THE ORDEAL. 

If the jurist, trained in the logic of the civil law, was thus 
ignorant of the superstition, it was not so among the people. 
So dramatic a mode of detecting the foulest crimes naturally 
took a deep hold of the popular imagination, and the belief 
in it as an ordeal, as well as in the trial by fire, is well illus- 
trated in the ballad of "Earl Richard," given by Scott in 
the " Minstrelsy of the Scottish Border." 

" ' Put na the wite on me,' she said; 
' It was my may Catherine.' 
Then they hae cut baith fern and thorn, 
To burn that maiden in. 

" It wadna take upon her cheik, 
Nor yet upon her chin; 
Nor yet upon her yellow hair, 
To cleanse that deadly sin, 

*' The maiden touched that clay-cauld corpse, 
A drap it never bled ; 
The ladye laid her hand on him, 
And soon the ground was red." 

King James I. patronized this among the other supersti- 
tions to which he gave the authority of his royal approbation;^ 
and in the notes to the above ballad, Scott quotes some 
curious instances of the judicial use made of the belief, even 
as late as the seventeenth century. In i6it, suspicion aris- 
ing as to the mode by which a person had met his death, 
the body was exhumed, and the neighborhood summoned to 
touch it, according to custom. The murderer, whose rank 
and position placed him above suspicion, kept away ; but 
his little daughter, attracted by curiosity, happened to ap- 
proach the corpse, when it commenced bleeding, and the 
crime was proved. The extent to which the superstition 
was carried is shown by a story of a young man, who 
quarrelled with a companion, stabbed him, and threw the 
body into a river. Fifty years passed away, when a bone 

' Nam ut in homicidio occulto sanguis e cadavere, tangente homicida, 
ei'umpit, quasi coelitus poscens ultionem. — Demonologiai Lib. ill, c. vi. 



BIER-RIGHT. 3I9 

chancing to be fished up, the murderer, then an old man, 
happened to touch it, and it streamed with blood. Inquir- 
ing where it had been found, he recognized the relic of his 
crime, confessed it, and was duly condemned. We may 
trace a more poetic form of this superstition in the touching 
legend of the welcome which the bones of Abelard gave to 
Heloise, when, twenty years after his death, she was con- 
signed to the same tomb. 

In the celebrated case of Philip Standsfield, tried in 1688 
for the murder of his father Sir James Standsfield of New 
Milnes, the dittay or indictment dramatically recounts how, 
after the body had been found in a neighboring pond, and 
an autopsy had been performed by a surgeon, '' James Row, 
merchand, having lifted the left side of Sir James, his head 
and shoulder, and the said Philip the right side, his father's 
body, though carefully cleaned as said is, so as the least 
blood was not on it, did (according to God's usual mode of 
discovering murders) blood afresh upon him and defiled all 
his hands, which struck him with such a terror, that he im- 
mediately let his father's head and body fall with violence 
and fled from the body and in consternation and confusion 
cryed Lord have mercy upon me ! and bowed himself down 
over a seat in the church (where the corp were inspected) 
wiping his father's innocent blood off his own murdering 
hands upon his cloaths." The defence showed that in the 
post-mortem examination an incision had been made in the 
neck, where there was a large accumulation of extravasated 
blood; and Mattheus and Carpzovius were quoted to prove 
that such bleeding was not even evidence sufficient to justify 
torture. The accused, however, was condemned and executed, 
though the circumstantial evidence against him was anything 
but conclusive.^ Somewhat remarkable, in view of the length 

• Cobbett's State Trials, XT. 1371. — A similar incident is recorded in 
the indictment of Christian Wilson, tried for witchcraft at Edinburgh in 
1661. (Spottiswoode Miscellanies, II. 69.) 



320 THE ORDEAL. 

of time which had elapsed between the death and the ordeal, 
is a case alluded to in the records of Accomac County, Vir- 
ginia. About the middle of January, 1680, a new-born 
illegitimate child of " Mary, daughter of Sarah, wife of Paul 
Carter," died and was buried. It was nearly six weeks 
before suspicion was aroused, when the coroner impanelled 
a jury of twelve matrons, whose verdict reported that Sarah 
Carter was brought to touch the corpse without result, but 
that when Paul Carter touched it "immediately whilst he 
was stroaking ye childe the black and settled places above 
the body of the childe grew fresh and red so that blud was 
redy to come through ye skin of the childe." On the 
strength of this verdict an indictment was found against Paul 
Carter, but the result of the subsequent trial does not appear 
among the records of the county.^ 

Although there is no allusion to this custom in any of the 
primitive Leges Barbarorum, nor even in the German mu- 
nicipal codes of the thirteenth century, y^t it was judicially 
employed there until the seventeenth century, under the name 
of " Bahr-recht." Thus in 1324, Reinward, a Canon of 
Minden, was murdered by a drunken soldier, and the crime 
was brought home to the perpetrator by a trial of this kind.^ 
In 1487, Sprenger assumes it as an unquestioned proof, and 
uses it as the basis of an argument on the wonderful proper- 
ties of inanimate matter. He explains it on the theory that 
air is introduced into the wound when it is made, and that 
it rushes out when agitated by the presence of the slayer, 
bringing blood with it. He mentions, however, that others 
believe it to be the cry of blood from the earth against the 
murderer, on account of the first homicide, Cain.^ A hun- 

' I owe this statement to the kindness of L. S. Joynes, M D., of Rich- 
mond, who informs me that he found it in examinnig the ancient records 
of Accomac. 

2 Swartii Chron. Ottbergens. § xlvii. (Paullini Antiq. German. Syn- 
tagma.) 

3 Malleus Maleficarum, Francof, 1580, pp. 21, 32. 



BIER-RIGHT. 32I 

dred years later Bodin gives full credit to it/ and about the 
year 1600, Bishop Binsfeld speaks of its occurrence as an in- 
dubitable fact.2 About 1580, President Bertrand d'Argen- 
tre, in his Commentaries on the Customs of Bretagne, treats 
it as good evidence/^ though shortly afterwards, in 1592, the 
learned jurisconsult Zanger, after citing numerous authorities 
on both sides, concludes that it is not evidence sufficient 
even to justify the application of torture.* Yet cases in 
which it was employed are cited by Oelsner as occurring in 
1601, 1608, 1626, and 1631. In 1607, two nobles were 
executed, April 25, for the murder of a shepherd, whose 
body bled freely on their approach, and even moved its 
hand and pointed to one of them. Oelsner also gives a 
slightly different version of the story quoted above from Scott. 
An Austrian noble, on his way to Vienna, was passing through 
a forest when his dogs dug up some bones whose whiteness 
took his fancy; he carried them to the city, and sent them to 
a cutler to be worked up into some ornament. As soon as 
they were brought into the presence of the artificer they 
became covered with blood. The noble communicated the 
fact to the magistrates, the cutler was arrested, and confessed 
that twenty years before he had murdered a companion, and 
buried his body in the place where the bones were found. ^ 
As late as 1714, moreover, Nehring quotes authorities in its 
favor as proof sufficient to call for torture, and feels obh'ged 
to argue at some length to demonstrate its inadequacy.^ 

• De Magorum Daemonoman. Basil. 1581, pp. 139-40. 

2 Tract, de Confess. Maleficar. p. no. (Ed. 1623.) 

3 "■ Cujus rei rationem petuiit e causis natuvalibus, et reddere conatur 
Petrus Apponensis; quae qualescunque tandem hse sint, constat evenisse 
saepe, et magnis aiitonbus tradita exempla," and he proceeds to quote as 
authority Paris di Puteo, Hipp, Marsigli, and other eminent criminahsts, — 
B. d'Argentre Comment, in Consuetud. Britann. p. 145, Ed. 8, Antverp. 
1644. 

4 Zangeri Tract, de Qusestionibus, cap. 11. No. 160. 

5 C. C. Oelsner Disp. Jurid. de Jure Feretri, pp. 25-27 (Jense, 1735). 

6 Joh. Christ. Nehring De Indiciis, Jenge, 17 14, pp. 42-3. 



322 THE ORDEAL. 

A variation of this ordeal, known as ■'' Scheingehen," was 
practised in the Netherlands and the North, in which the 
hand of the corpse was cut off, and touched by all suspected 
persons, with protestations of innocence, and when the guilty 
one came it was expected to bleed.* A case of this kind is 
recounted by Chytrseus, as occurring in the sixteenth century, 
in which the hand was cut off from the body of a murdered 
man and hung up in a prison. Ten yeais later a thief was 
captured and chanced to be brought into the room, when 
the hand at once began to bleed, and the prisoner confessed 
the murder.^ 

The vitality of superstition is well illustrated by the trans- 
mission of belief in the bier- right even to our own day. In 
1767, the coroner's jury of Bergen County, N. J., was sum- 
moned to view the body of one Nicholas Tuers, whose murder 
was suspected. The attestation of Joannes Demarest, the coro- 
ner, states that he had no belief in the bier-right, and paid no 
attention to the experiment, when one of the jury touched 
the body without result. At length Harry, a slave, who had 
been suspected without proof, was brought up for the same 
purpose, when he heard an exclamation ''He is the man," 
and was told that Tuers had bled on being touched by 
Harry. He then ordered the slave to place his hand on the 
face of the corpse, when about a tablespoonful of blood im- 
mediately flowed from each nostril, and Harry confessed the 
murder in all its particulars.^ In 1833, a man named Getter 
was executed in Pennsylvania for the murder of his wife, and 
among the evidence which went to the jury on his trial was 
that of a female witness who deposed '* If my throat was to 
be cut, I could tell, before God Almighty, that the deceased 
smiled when he (the murderer) touched her. I swore this 
before the justice, and also that she bled considerably. I 
was sent for to dress her and lay her out. He touched her 

1 Konigswarter, op. cit. p. 183. 2 Nehring, op. cit. p. 19. 

3 Annual Register for 1767, pp. 144-5. 



OATHS AS ORDEALS. 323 

twice. He made no hesitation about doing it. I also swore 
before the justice that it was observed by other people in 
the house. "^ Nor is the belief even yet eradicated from 
the credulous minds of the uneducated. In i860, the Phila- 
delphia journals mention a case in which the relatives of a 
deceased person, suspecting foul play, vainly importuned 
the coroner, some weeks after the interment, to have the 
body exhumed, in order that it might be touched by a per- 
son whom they regarded as concerned in his death. In 
1868, at Verdiersville, Virginia, a suspected murderer was 
compelled to touch the body of a woman found in a wood; 
and in 1869 at Lebanon, Illinois, the bodies of two murdered 
persons were dug up, and two hundred of the neighbors 
were marched past them, each of whom was made to touch 
them in the hope of finding the criminals.^ 

OATHS AS ORDEALS. 

We have seen above the superstitions connected with the 
oath, current among all branches of the Aryans, and that in 
ancient India this elevated the imprecation taken in judicial 
proceedings to the position of a veritable ordeal, which was 
followed in case of perjury by some dire misfortune sent by 
Heaven to punish the perjurer. We have also seen that in 
Christendom the church set little store by simple oaths, but 
reckoned their obligation by the holiness of the material ob- 
.jects on which they were taken; and when these were relics 
of peculiar sanctity they were held to have the power of 
punishing the perjurer, thus rendering the oath administered 
upon them an absolute ordeal like that of the Hindus. This 
belief developed itself at an early period in the history of 
the church. St. Augustine relates that at Milan a thief, who 

1 Dunglison's Human Physiology, 8th ed. II, 657. 

2 Phila. Bulletin, April 19, i860; N. Y. World, June 5, 1868; Phila, 
North American, March 29, 1869, 



324 THE ORDEAL. 

swore upon some holy relics with the intention of bearing 
false witness, was forced irresistibly to confess himself guilty 
of the offence which he designed to fasten upon another; 
and Augustine himself, when unable to decide between two 
of his ecclesiastics who accused each other of revolting 
crime, sent them both to the shrine of St. Felix of Nola, in 
the full expectation that the judgment of God would bring 
to light the truth as between them.^ Gregory the Great 
shows the same belief when he alludes to a simple purgato- 
rial oath taken by a bishop on the relics of St. Peter in terms 
which expressly convey the idea that the accused, if guilty, 
had exposed himself to no little danger, and that his per- 
formance of the ceremony unharmed had sufficiently proved 
his innocence. Gregory, moreover,' in one of his Homilies, 
assumes that perjury committed on the relics of the saints is 
punished by demoniacal possession.^ 

This was not a belief likely to be allowed to die out for 
lack of nourishment. When, in the tenth century, Adaulfus, 
Bishop of Compostella, was accused of a nameless crime, 
and was sentenced by the hasty judgment of the king to be 
gored to death by a wild bull, he had taken the precaution, 
before appearing at the trial, to devoutly celebrate mass in 
his full pontificals. The bull, maddened with dogs and 
trumpets, rushed furiously at the holy man ; then, suddenly 
pausing, advanced gently towards him and placed its horns 
in his hands, nor could any efforts of the assistants provoke 
it to attack him. The king and his courtiers, awed by this 
divine interposition in favor of innocence, threw themselves 
at the feet of the saint, who pardoned them and retired to 
the wildest region of the Asturias, where he passed the rest 
of his days as an anchorite. He left his chasuble behind 
him, however, and this garment thenceforth possessed the 

• August. Epist. Ixxvii. |§ 2, 3. (Ed. Benedict.). — "Ut quod homines 
invenire non possunt de quolibet eorum divino judicio propaletur." 

2 Can. Habet hoc propriura, cans. II. quaest. 5. — Gregor. P. P. I. 
Ilomil XXII. in Evangel, cap. 6. 



OATHS AS ORDEALS. 325 

miraculous power that, when worn by any one takmg an 
oath, it could not be removed if he committed perjury/ 

In other cases the shrines of saints convicted the perjurer 
by throwing him down in an epileptic fit, or by fixing him 
rigid and motionless at the moment of his invoking them to 
witness his false oath.^ The monks of Abingdon boasted 
a black cross made from the nails of the crucifixion, said to 
have been given them by the Emperor Constantine, a false 
oath on which was sure to cost the malefactor his life ; and 
the worthy chronicler assures us that tl\e instances in which 
its miraculous power had been triumphantly exhibited were 
too numerous to be specified.^ At the priory of Die, depend- 
ent on the great Benedictine abbey of Fleury, there was pre- 
served an arm-bone of St. Maur, which was possessed of 
somewhat similar properties. On one occasion a steward of 
the priory named Joscelin was accused of embezzlement, and 
offered to rebut the evidence against him by an oath taken 
on the arm of St. Maur. Rejoiced at passing through the 
test triumphantly, he removed his hand from the relic, and 
stroking his long beard with it he exclaimed, "By this beard, 
the oath I swore was true !" when suddenly the beard came 
off in his hand, and his chin, thenceforth hairless, was the 
evidence alike of his guilt and his perjury, so that he and his 
descendants were at once proclaimed ineligible to the steward- 
ship.* Less serious in its consequences was a false oath taken 
by a peasant on the altar of St. Martial of Limoges. The 
offender was deprived of speech, and could only bellow like 
an ox until he had prayed over the tomb of the saint, and 

1 Munionis Histor. Compostellan. Lib. i. cap. 2, ^ 2. 

2 Gregor. Turon. De Gloria Martyrum cap. 58, 103. 

3 Sancta enim adeo est, ut nullus, juramento super earn prsestito, im- 
pune et sine periculo vitae suae possit affirmare mendacium. — Hist. Monast. 
Abing. Lib. I. c. xii. (M. R. Series.) 

* Radulph. Tortarii Mirac. S. Benedicti cap. xxii. (Patrol. T. 160, 
p. 1210.) 
28 



326 THE ORDEAL. 

his throat had received the sign of the cross from a priest.^ 
Even at the present day the jaw-bone of vSt. Patrick is pre- 
served near Belfast, and is used extra-jndicially as an ordeal, 
in the full conviction that the slightest variation from the 
truth will bring instantaneous punishment on the perjurer.^ 
In the Middle Ages, these dangerous relics were common, 
and however we may smile at the simplicity of the faith re- 
posed in them, we may rest assured that on many occasions 
they were the means of eliciting confessions which could 
have been obtained by no devices of legal subtlety accord- 
ing to modern procedures. 

Nor did it always require death to confer the sanctity re- 
quisite to perform these miracles, as was attested during the 
life of St. Bertrand of Comminges. A woman accused of 
adultery went to the saint and laying her hand on him swore 
to her innocence, when the hand immediately withered and 
remained a permanent witness of her guilt and her perjury.^ 

Even without any special sanctity in the administration of 
the oath. Heaven sometimes interposed to protect the rights 
of the church. About the year 1200 Caesarius of Konigs- 
winter, a knight, who had borrowed twenty marcs of his 
brother, Hirminold Dean of the Chapter of Bonn, denied 
the loan after his brother's death. As the money belonged 
to the church, the chapter summoned the knight, and having 
no proof, were obliged to content themselves with his oath. 
Having accomplished his perjury, Cassarius mounted his 
horse and returned homewards, but when he had accom- 
plished the half of his journey, his horse was suddenly fixed 
immovable to the earth, and he found himself deprived of 
the use of the tongue which he had thus abused. Recog- 
nizing the source of the trouble, he prayed to Abraham, 

' Gregor. Turon. de Glor. Confess, c. xxix. 

2 Chambers's Book of Days, I. 384. 

3 Vit, S. Bertrandi Coavenar, No. 26 (Martene Ampliss. Collect. VI. 
1035)- 



POISON ORDEALS. 327 

promising to retrace his steps and confess his sin. He was 
immediately released, returned to Bonn, made restitution 
and accepted penance. He subsequently entered the monas- 
tery of Heisterbach as a novice, and related the story of 
himself.^ 



POISON ORDEALS. 

The poison ordeal, which forms the basis of judicial pro- 
ceedings among so many of the African tribes, seems not to 
have been brought into Europe by the Aryan invaders, al- 
though it was in use among their kindred who remained in 
the East. Possibly this may have arisen from the fact that in 
their migrations they could no longer obtain the substances 
which they had been accustomed to use, and before they had 
familiarized themselves with the resources of their new homes, 
the custom may have fallen into desuetude amid the abun- 
dance of other methods. A lingering remnant of it may per- 
haps be detected in the trial of the priestess of the Gaeum in 
Achaia, already alluded to, but substantially the poison 
ordeal may be regarded as obsolete in the West. 

In the East, however, it has continued in use. Yajnaval- 
kya says that it is not to be employed unless the matter at 
stake is equivalent to a thousand pieces of silver, or the 
offence has been committed against the king. The poison 
prescribed is that known as sarnga, produced by a tree which 
grows in the Himalayas, and the accused invokes it as a 
personification of the divine nature — ''Thou, O poison, art 
the child of Brahma, steadfast in justice and in truth: clear 
me then from this heavy charge, and, if I have spoken truly, 
become nectar to me!" So saying, he swallows the dan- 
gerous dose, and if he digests it without evil consequences 
he is acquitted.^ A more recent authority describes the 

1 Caesar. Heisterbach. Dial. IMirac. Dist. iv. c. Iviii. 

2 As. Researches, I. 402-4. 



328 THE ORDEAL. 

poison ordeal as. used only on the despised caste of Sudras. 
A specified quantity of some deadly article, varying in 
amount with its activity, is mixed with thirty times its weight 
of ghee, or clarified butter. The patient takes this, standing 
with his face to the north, and if it produces no effect upon 
him while the bystanders can clap their hands five hundred 
times, he is pronounced innocent and antidotes are at once 
administered to him.^ A slight variation of this is recorded 
by a writer of the last century. After appropriate religious 
ceremonies, seven barleycorns of the deadly root vishanaga, 
or of arsenic, are mingled with thirty-two times its bulk of 
ghee, and eaten by the accused from the hand of a Brahman. 
If it produces no effect, he is acquitted.^ Much more hu- 
mane was the custom described by Hiouen Thsang in the 
seventh century, when the experiment was performed vica- 
riously on a bullock, even as a hen is used among the Niam- 
Niam of equatorial Africa. The animal was fed with poi- 
soned food, and poison was likewise inserted in a wound 
made for the purpose in the right leg, while the fate of the 
accused was determined by the death or survival of the un- 
lucky beast. -^ 

Still another form in modern times seems to have been 
invented as a combination of the hot water and poison or- 
deals. A naga or cobra is dropped into a deep earthen pot 
along with a coin or ring, w^hich the person on trial must 
remove with the hand. If he is bitten, he is condemned, if 
he escapes scathless he is acquitted.* 

IRREGULAR ORDEALS. 

The devout dependence upon Heaven, exhibited in the 
ordeal, did not exhaust itself on the forms of trial de- 
scribed above, but was manifested in various other expe- 

' Ayeen Akbery, II. 497. 

2 All Ibrahim Khan (As. Researches, I. 391). 

3 Wheeler's India, III. 262. 

4 Ali Ibrahim Khan, ziln sup. 



IRREGULAR ORDEALS. 329 

dicDts, sometimes adopted as legal processes, and sometimes 
merely the outcome of individual credulous piety. While 
therefore they cannot be regarded as forming part of the 
recognized institutions of Europe, still they illustrate too 
clearly the tendency of thought and belief to be entirely 
passed over. 

Among these may be classed a practice which was sub- 
stantially an appeal to God to regulate the amount of pun- 
ishment requisite for the expiation of a crime. One or more 
bands of iron were not infrequently fastened around the 
neck or arm of a murderer, who was banished until by pil- 
grimage and prayer his reconciliation and pardon should be 
manifested by the miraculous loosenmg of the fetter, showing 
that soul and body were both released from their bonds. ^ A 
case is related of a Pole thus wandering with a circlet tightly 
clasped to each arm. One fell before the intercession of St. 
Adalbert, the apostle of Prussia, but the other retained its 
hold until the sinner came to the shrine of St. Hidulf near 
Toul. There, joining in the worship of the holy monks, the 
remaining band flew off with such force that it bounded 
against the opposite wall, while the pardoned criminal fell 
fainting to the ground, the blood pouring from his liberated 
arm: a miracle gratefully recorded by the spiritual children 
of the saint. ^ Equally melodramatic in its details is a similar 
instance of an inhabitant of Prunay near Orleans, laden with 
three iron bands for fratricide. His weary pilgrimage was 
lightened of two by the intercession of St. Peter at Rome, 
and the third released itself in the most demonstrative man- 

' Frah-icidas autem et parricidas sive sacerdotum interfectores , . . per 
manum el ventrem ferrates de regno ejiciat ut instar Cain jugi et profugi 
circueant terram. — Leg. Bracilai Bosemor. (Annal. Saxo ann. 1039.) 
So also a century earlier for the murder of a chief. — Concil. Spalatens. 
ann. 927, can. 7 (Batthyani, I. 331), 

2 De Successoribus S. Hidulfi cap. xviii. (Patrolog. CXXXVIII., p. 
218.) A similar case attested the sa-nctity of St. Mansuetus (Vit S. Man- 
sueti Lib. 11. c. 17 — Martene et Durand. Thesaur. III. 1025). 

28* 



330 THE ORDEAL. 

ner, through the merits of St. Bertin and St. Omer.' If the 
legend of St. Emeric of Hungary be true, the Pope himself 
did not disdain to prescribe this ordeal to the criminal whose 
miraculous release caused the immediate canonization of the 
saint by a synod in 1073.^ Repentant sinners also frequently 
bound themselves with iron rings and chains by way of 
penance, and the spontaneous disruption of these, which 
sometimes occurred, was regarded as a sign that God had 
pardoned the penitent.^ 

The spirit of the age is likewise manifested in an appeal to 
Heaven which tetoinated a quarrel in the early part of the 
twelfth century between St. Gerald, Archbishop of Braga, 
and a magnate of his diocese, concerning the patronage of 
a church. Neither being inclined to yield, at length the 
noble prayed that God would decide the cause by not per- 
mitting the one who was in the wrong to live beyond the 
year, to which St. Gerald assented ; and in six months the 
death of the unhappy noble showed how dangerous it was to 
undertake such experiments with a saint.* This, indeed, 
may be held to have warrant of high authority, for when, in 
2,^,6, Alexander Bishop of Constantinople was about to en- 
gage in disputation with the arch-heretic Arius, he under- 
went a long fast, and shut himself up for many days and 
nights alone in his church praying to God, and finally sup- 
plicating that if his faith were wrong he might not live to see 
the day of contest, while if Arius were in error he likewise 
might be taken off in advance; and the orthodoxy of the 

' Folcardi Mirac. S. Bertin, Lib. I. c. 4. 

2 Batthyani, Legg. Eccles. Hung. T. I. p. 413, See also Mirac. S. 
Swithuni c. ii. ^ 32. — Mirac. S. Yvonis c. 21 (Pairol. CLV., 76, 91). 
Various other instances maybe found in Muratori, Antiq. Med. ^vi, Diss. 
23. Charlemagne seems to have considered it a deception to be restrained 
by law. — Car. Mag. cap. i. ann. 789, | Ixxvii. 

3 Caesar. Heisterb. Dial. Mirac. Dist. xi. c. xxvii. xxix. 

4 Bernald. Vit. S, Gerald, cap. xv. (Baluz et Mansi I. 134.) 



IRREGULAR ORDEALS. 33 I 

Nicene creed was confirmed miraculously by the sudden 
and terrible death of the heretic Arius within a few days.^ 

The error of the Arian doctrine of the Trinity was demon- 
strated by another volunteer miracle about the year 510, 
when Deuterius the Arian Bishop of Constantinople under- 
took to baptize a convert in the name of the Father through 
the Son in the Holy Ghost, and was rebuked for using this 
heretical formula by the sudden disappearance of all the 
water in the font.^ 

With these examples may be classed a trial of faith pro- 
posed by Herigarius, one of the earliest Christian converts 
of Sweden, as conclusive, though not so dangerous as that of 
Bishop Poppo. After frequent disputes with his Pagan neigh- 
bors, he one day suggested, when a storm was approaching, 
that they should stand on one side and he on the other, and 
see which of them would get wet. The rain came down in 
torrents and nearly drowned the heathen scoffers, while 
Herigarius and a boy in his company serenely looked on, 
untouched by a single drop.^ 

When, at the end of the ninth century, the attacks of 
Rollo and his Normans drove the monks of St. Martin of 
Tours to seek safety for themselves and the priceless relics 
of their saint at Auxerre, the body of St. Martin was de- 
posited in the church of St. Germain near the tomb of the 
latter. The miracles wrought by the newcomer speedily 
caused a large influx of oblations which the strangers took to 
themselves. The monks of St. Germain claimed an equal 
share on the ground that the miracles were wrought by the 
combined merits of both saints. The Touraingeois resisted 
the demand, and finally offered to decide the question by 
taking a leper and placing him for a night between the rival re- 
liquaries. If he should in the morning be entirely cured, they 

1 Socratis Hist. Eccles. Lib. i. c. 25. 

2 Theodori Lector. H. E, Lib. 11. 

3 Remberti Vit. St. Anscharii c. xvi. (Langebek I. 458-9). 



332 THE ORDEAL. 

agreed to admit that both saints were concerned in the mira- 
cles, and that the receipts should be shared ; but if only one 
side of him was restored to health then the saint on whose 
side he was cured should have the credit and his monks the 
money. This was agreed to ; the leper was placed between 
the tombs, and both parties spent the night in prayer. In the 
morning he was found with the half of him towards St. Mar- 
tin sound and well, while the side towards St. Germain had 
not been in the least benefited. To remove any lingering 
doubts, he was then turned around, and the other side was 
cured. The result was beyond further question, and the 
monks of St. Martin were permitted to enjoy in peace thence- 
forth the offerings of the faithful.^ 

It occasionally happened that the direct interference of 
Heaven, without the use of formulas, was volunteered to stay 
the blundering hand of human justice. In 1219, near Co- 
logne, a man was condemned for theft and promptly hanged, 
but when the spectators supposed him comfortably dead, he 
suddenly exclaimed, "Your labor is vain; you cannot 
strangle me, for my lord bishop St. Nicholas is aiding me. 
I see him." Taking this for a convincing proof of his inno- 
cence, the crowd at once cut him down, and he hastened to 
the church of Bruweiler to give thanks for his miraculous 
escape.^ It is curious to observe however that the pious 
contemporary narrator of this instance of the power of St. 
Nicholas is careful to let us understand that the man may 
have been guilty after all. St. Olaf of Norway once inter- 
fered in the same way to support, during nine hours of sus- 
pension, a man unjustly hanged on a false accusation of 
theft.3 

Heaven could also be directly appealed to without the 
intervention of the hot iron or boiling water. A question of 

1 Gesta Consul. Andegavens. c. iii. | 16 (D'Achery III. 241). 

2 Caesar. Heisterbach Dial. Mirac. Dist. vin. c. Ixxiii. 

3 Legendae de S. Olavo (Langebek II. 55 1-2 j. 



CONDITIONS OF THE ORDEAL. 333 

much importance to northern Italy was thus settled in the tenth 
century, when Uberto of Tuscany, driven into exile by Otho 
the Great, returned after a long absence, and found his wife 
Willa with a likely boy whose paternity he refused to ac- 
knowledge. After much parleying, the delicate question 
was thus settled. A large assembly, consisting principally 
of ecclesiastics, was convened, in which Uberto sat without 
anything to distinguish him. The boy, who had never seen 
him, was placed in the centre, and prayers were offered by 
all present that he should be led by divine instinct to his 
father. The prayers were promptly answered, for he rushed 
without hesitation to the arms of Uberto, who could no 
longer indulge in unworthy doubts, and in time Ugo became 
the most powerful prince of Italy.^ 

In the crazied effort to detect the all-pervading and secret 
crime of witchcraft, a number of superstitious observances 
found currency among the people which practically assumed 
the position of ordeals. Thus in the latter half of the six- 
teenth century it was believed that a fragment of earth from 
a grave, when sanctified in the Mass and placed on the 
threshold of a church door, would prevent the egress of 
any witch who might be within ; and a similar power was 
attributed to a splinter of oak from a gallows, sprinkled with 
holy water and hung up in the church porch. ^ 

CONDITIONS OF THE ORDEAL. 

The ordeal was thoroughly and completely a judicial pro- 
cess, ordained by the law for certain cases, and carried out 
by the tribunals as a regular form of ordinary procedure. 
From the earliest times, the accused who was ordered to 
undergo the trial was compelled to submit to it, as to any 
other decree of court. Thus, by the Salic law, a recusant 

' Pet. Damian, Opusc, lvii. Diss. ii. c. 3, 4. 
2 Wieri de Prsestigiis Dsemonum, p. 589-90. 



334 THEORDEAL. 

was summoned to the royal court; and if still contumacious, 
he was outlawed, and his property confiscated, as was cus- 
tomary in all cases of contempt.^ The directions of the 
codes, as we have seen, are generally precise, and admit of 
no alternative.^ Occasionally, however, a privilege of selec- 
tion was afforded between this and other modes of compur- 
gation, and also between the various forms of ordeal.^ 

The circumstances under which its employment was or- 
dered varied considerably with the varying legislations of 
races and epochs ; and to enter minutely into the question of 
the power of the court to decree it, or the right to demand 
it by the appellant or the defendant, would require too much 
space, especially as this has already been discussed at some 
length with regard to one of its forms, the wager of battle. 
In India, the accuser was required to undergo the risk of a 
fine if he desired to force his adversary to the ordeal; but 
either party could voluntarily undertake it, in which case the 
other was subject to a mulct if defeated.* In Europe there 

' That this was a settled practice is shown by its existence in the earliest 
text of the law (Tit. LVI. ) as well as in the latest (L, Emend, Tit. Lix.).- 
It is therefore difficult to understand how Montesquieu could have over- 
looked it, when, in order to establish- his theory that the original Prankish 
institutions admitted no negative proofs, he asserts with regard to the or- 
deal that " Cette preuve etoit una chose de convention, que la loi souffroit, 
mais qu'elle n'ordonnoit pas" (Espr. des Loix, Lib. xxviii. chap. i6) — a 
statement contradicted by all the monuments, historical and juridical, of 
the period. His only proof is a somewhat curious custom of the Salien 
Franks, to which reference is made below. 

2 Si aufugerit et ordalium vitaverit, solvat plegius compellanti- captale 
suum et regi weram suam. — L. Cnuti Ssec. cap. xxx. — See also cap. xli. 

'^ Et eligat accusatus alterutrum quod velit, sive simplex ordalium, sive 
jusjurandum unius libre in tribus hundredis super xxx. den. — L. Henrici 
I. cap. Lxv. I 3. By the municipal codes of Germany, a choice between 
the various forms of ordeal was sometimes allowed to the accused who was 
sentenced to undergo it. — Jur. Provin. Alaman. cap. xxxvii. ^^ 15, 16. 
Jur. Provin. Saxon. Lib. I. Art. 39. 

■* Yajnavalkya, i, 2. (Asiatic Researches I. 402.) 



CONDITIONS OF THE ORDEAL. 



335 



appears to have been a custom under which, when the ac- 
cused had escaped in the ordeal, the accuser was obliged to 
undergo it. In the case of bier-right quoted above from 
Scott's Border Minstrelsy, this seems to have been to prove 
whether the accuser herself was not the guilty person. In 
the heroic poems of the Elder Edda, a similar trial appears to 
be resorted to only for the purpose of showing the false wit- 
ness borne by the accuser. When Gudrun the wife of Atli 
is defamed as an adulteress by the concubine Ilerkia, and is 
forced to the ordeal — 



She to the bottom plunged 
Her snow-white hand, 
And up she drew 
The precious stones. 
" See now, ye men, 
I am proved guiltless 
In holy wise, 

Boil the vessel as it may." 
Laughed then Atli's 
Heart witliin his breast 
When he unscathed beheld 
The hand of Gudrun. 



*' Now must Herkia 
To the cauldron go, 
She who Gudrun 
Had hoped to injure." 
No one has misery seen 
Who saw not that, 
How the hand there 
Of Herkia was hurt. 
They then the woman led 
To a foul slough. 
So were Gudrun's 
Wrongs avenged.i 



The absence of satisfactory testimony, rendering the case 
one not to be solved by human means alone, is frequently 
alluded to as a necessary element;^ and indeed we may 



' Guthrunarkvida Thridja, 9, 10 (Thorpe's Elder Edda, pp. 106-7). 

2 Si certa probatio non fuerit. — L. Sal. Tit. XI v. xvi. (MS. Guelferbyt.) 
The same is found in the Pact. Childeberti et Chlotarii § 5 — Decret. Chlo- 
tarii II. ann. 595, | 6. — Capit. Carol. Calvi, ann. 873, cap. 3, 7. — Cnuti 
Constit. de Foresta § 1 1 : " Sed purgatio ignis nulLitenus admittatur nisi 
ubi nuda Veritas nequit aliter investigari." — Consuetud. Tornacens, Com- 
mun. ^ ii. (D'Achery Spicileg. III. 551). Home's Myrror of Justice, 
cap. III. Sect. 23 : "En case ou battaille ne se poit joindre ne nul tesmo- 
gnage n'avoit lieu . . . . e le actor n'ad point de testmoignes a prover sa 
action, adonque estoit en le volunt del deffendant a purger sa fame per le 
miracle de Dieu." Further instances are hardly needed, as the same limi- 
tation occurs in many of the laws quoted above. 



336 THE ORDEAL. 

almost assert that this was so, even when not specifically 
mentioned, as, far as regards the discretion of the tribunal to 
order an appeal to the judgment of God. Yet there were 
some exceptions to this, as in the early Russian legislation, 
where the ordeal is prescribed for the accused in all cases 
in which the accusation is substantiated by testimony;^ and 
a law of King Ethelred seems to indicate that the plaintiff 
might require his adversary to submit to it,'^ while numerous 
examples among those cited above authorize the conclusion 
that an offer on the part of the accused was rarely refused, 
even when there was strong evidence against him,^ though 
this laxity of practice was occasionally objected to stoutly.* 
When the custom was declining, indeed, a disposition ex- 
isted to require the assent of both parties before the tribunal 

1 Ruskaia Prawda, art. 28. Even the evidence of a slave was sufficient 
to condemn the accused to the red-hot iron. If he escaped, the accuser 
paid him a small fine which was not required if the witnesses had been 
freemen. In all cases of acquittal, however, there were fines payable to 
the sovereign and to the ministers of justice. 

2 Et omnis accusator vel qui alium impetit, habeat optionem quid velit, 
sive judicium aque vel ferri . . . et si fugiet (accusatus) ab ordalio, reddat 
eum plegius wera sua. — Ethelr. Tit. iii. c. vi. (Thorpe 11. 516.) 

3 Thus, in the Icelandic code — " Quodsi reus ferrum candens se gerere 
velle obtulerit, hoc minime rejiciatur." — Gragiis, Sect. VI. c. 33. So in 
the laws of Bruges in 1190 (^ 31), we find the accused allowed to choose 
between the red-hot iron and a regular inquest—" Qui de palingis inpeti- 
tur, si ad judicium ardentis ferri venire noluerit, veritatem comitis qualem 
melius super hoc inveniri poterit, accipiet" (Warnkonig, Hist, de la Fland. 
IV. 372) — showing that it was considered the most absolute of testimony. 
And in a constitution of Frederic Barbarossa " Si miles rusticum de violata 
pace pulsaverit . . . . de duobus unum rusticus eligat, an divino aut hu- 
mano judicio innocentiam suam ostendat." — Feudor. Lib. II. Tit. xxvii. 

4 Thus an anonymous ecclesiastic, in an epistle quoted by Juretus (Ob- 
servat. in Ivon. Carnot. Epist. 74.) — " Simoniaci non admittuntur ad judi- 
cium, si probabiles personae, etiam laicorum, vel feminarum, pretium se ab 
eis recipisse testantur; nee aliud est pro manifestis venire ad judicium nisi 
teutare Domiiuim." 



CONDITIONS OF THE ORDEAL. 337 

would allow a case to be thus decided.^ In civil cases, we 
may assume that absence of testimony, or the consent of both 
parties, was requisite to its employment.^ The comfort 
which the system must have afforded to indolent judges in 
doubtful cases is well exhibited by a rule in various ancient 
codes, by which a man suspected of crime, even though no 
accuser came forward, was thrown into prison and kept there 
until he could prove his innocence by the ordeal of water. ^ 

We have seen above occasional instances in which the 
accuser or plaintiff offered to substantiate his veracity by an 
appeal to the ordeal. This was an established rule with 
regard to the wager of battle, but not as respects the other 
forms of the judgment of God, which were regarded rather 
as means of defence than of attack. I have met with but 
few instances of general instructions for their employment by 
the accusing party. In the primitive laws of Russia, an 

1 Duellum vel judicium candentis ferri, vel aquae ferventis, vel alia can- 
onibus vel legibus improbata, nullomodo in curia Montispessulani rati sunt, 
nisi utraque pars convenerit. — Statut. Montispess. ann. 1204 [Du Cange). 

2 Si accolis de neutrius jure constat, adeoque hac in re testimonium di- 
cere non queant, turn judicio aquae res decidatur. — Jur, Provin. Alaman. 
cap. cclxxviii. ^ 5. — Poterit enim alteruter eorum petere probationem per 
aquam (wasser urteyll) nee Dominus nee adversarius detrectare possit; 
sed non, nisi quum per testes probatio fieri nequit. — Jur. Feud. Alaman. 
cap. Ixxvii. ^ 2. 

" Aut Veritas reperiatur de hoc per aquaticum Dei judicium. Tamen 
judicium Dei non est licitum adhiberi per ullam causam, nisi cujus Veritas 
per justitiam non potest aliter reperiri, hoc terminabitiir judicio Dei." — 
Jur. Feud. Saxon. | 100 (Senckenberg. Corp. Jur. Feud. Gemian. p. 249). 
— So, also, in a later text, "judicium Domini fervida aqua vel ferro non 
licet in causa aliqua experiri, nisi in qua modis aliis non poterit Veritas in- 
dagari." — Cap. xxiv. § 19.. (Ibid. p. 337.) 

3 Ecablissements. de Normandie, Tit. de Prison (Ed. Marnier). Pre- 
cisely similar to this was a regulation in the early Bohemian laws. — Bra- 
cilai Leges. (Patrol. CLI., 1258-9.) And an almost identical provision is 
found in the Anglo-Saxon jurisprudence. — L. Cnuti S«c. cap. xxxv. — 
L. Henric. I. cap. Ixi. ^ 5. — See, also, Assises de Jerusalem, Baisse Court, 
cclix. 

29 



;^^S THE ORDEAL. 

accuser who could not substantiate his case with witnesses 
was obliged to undergo the ordeal of red-hot iron.^ Arch- 
bishop Hincraar directs that cases of complaint against 
priests for dissolute life shall be supported by seven wit- 
nesses, of whom one must subniit to the ordeal to prove the 
truth of his companions' oaths, as a wholesome check upon 
perjury and subornation.'^ With a similar object, the same 
prelate likewise enjoins it on compurgators chosen by the 
accused, on his failing to obtain the support of those who 
had been selected for him by his judge. -^ Allied to this was 
a rule for its employment which was extensively adopted, 
allowing the accused the privilege of compurgation with 
conjurators in certain cases, only requiring him to submit to 
the ordeal on his failing to procure the requisite number of 
sponsors. Thus, in 794, a certain Bishop Peter, who was 
condemned by the Synod of Frankfort to clear himself, with 
two or three conjurators, of the suspicion of complicity in a 
conspiracy against Charlemagne, being unable to obtain 
them, one of his vassals offered to pass through the ordeal in 
his behalf, and on his success the Bishop was reinstated.* 
That this was strictly in accordance with usage is shown by 
a very early text of the Salic Law,^ as well as by a similar 
provision in the Ripuarian code.^ Among the Anglo-Saxons 
it likewise obtained, from the time of the earliest allusion to 
the ordeal occurring in their jurisprudence, down to the 
period of the Conquest.^ Somewhat similar in tendency was 

1 Ruskaia Prawda, Art. 28. 

2 Hincmari Capit. Synod, ann. 852, II. xxi. 

3 Hincmari Epist. xxxiv. 

■* Capit. Car. Mag ann. 794, § 7. 

5 Se juratores non potuerit invenire, aut ad ineum ambulat aut, etc. — 
MS. Guelferbyt. Tit. xiv. 

6 Quod si ... . juratores invenire non potuerit, ad ignem seu ad sor- 
tem se excusare studeat. — L. Ripuar. Tit. xxxi. § 5. 

' Dooms of Edward the Elder, cap. iii. So also in the laws of William 
the Conqueror, Tit. I. cap. xiv, — " Si sen escundira sei duzime main. E 



EMPLOYED AS A PUNISHMENT. 339 

a regulation of Frederic Barbarossa, by which a slave sus- 
pected of theft was exposed to the red-hot iron, unless his 
master would release him by an oath.^ Occasionally it was 
also resorted to when the accused was outsworn, after having 
endeavored to defend himself by his oath or by conjurators. 
Thus a canon of the Council of Tribur in 895 declares that 
if a man is so generally suspected that he is outsworn in 
compurgation, he must either confess or submit to the hot- 
iron ordeal.^ Popular belief evidently might give to the 
accuser a larger number of men willing to associate themselves 
in the oath of accusation than the defendant could find to 
join him in rebutting it, and yet his guilt might not as yet be 
clear. In such cases, the ordeal was a most convenient re- 
sort. 

These regulations give to the ordeal decidedly the aspect of 
punishment, as it was thus inflicted on those whose guilt was so 
generally credited that they could not find comrades to stand 
up with them at the altar as partakers in their oath of denial ; 
and this is not the only circumstance which leads us to be- 
lieve that it was frequently so regarded. This notion is 
visible in the ancient Indian law, where, as we have seen, 
certain of the ordeals — those of red-hot iron, poison, and 
the balance — could not be employed unless the matter at 
stake were equivalent to the value of a thousand pieces of 
silver, or involved an offence against the king;^ and it re- 
appears in Europe in the graduated scale of single and triple 
ordeals for offences of different magnitudes. Such a scheme 
is so totally at variance with the theory of miraculous inter- 
position to protect innocence and punish guilt, that we can 
only look upon it as a mode of inflicting graduated punish- 
ments in doubtful cases, thus holding up a certain penalty in 

si il auer nes pot, si sen defende par juise." The collection known by the 
name of Henry I, has a similar provision, cap. Ixvi. § 3. 

' Radevic. de Reb. Frid. Lib. i. cap. xxvi, 

2 Concil. Tribur. ann. 895, can. xxii. 

8 Yajnavalkya (As. Researches I. 402}. 



340 THE ORDEAL. 

terrorem over those who would otherwise hope to escape by 
the secrecy of their crime — no doubt with a comforting con- 
viction, like that of De Montfort's priestly adviser at th€ 
sack of Beziers, that Heaven would know its own. This 
same principle is visible in a provision of the charter of 
Loudun, granted by Louis-le-Gros in 1128, by which an 
assault committed outside of the liberties of the commune 
could be disproved by a simple sacramental oath; but if 
within the limits of the commune, the accused was obliged 
to undergo the ordeal/ In another shape we see it in the 
customs of Tournay, granted by Philip Augustus in 1187, 
where a person accused of assault with sharpened weapons, 
if there were no witnesses, was allowed to purge himself with 
six conjurators if the affair occurred in the daytime, but if 
at night, was obliged to undergo the water ordeal.^ Further 
illustration is afforded by the principle, interwoven in va- 
rious codes, by which a first crime was defensible by con- 
jurators, or other means, while the tiht-l)ysigxmn, the "homo 
infamatus," one of evil repute, whose character had been 
previously compromised, was denied this privilege, and was 
forced at once to the hot iron or the water. Thus, among 
the Anglo-Saxons, in the earliest allusion to the ordeal, by 
Edward the Elder, it is provided that perjured persons, or 
those who had once been convicted, should not be deemed 
thereafter oath-worthy, but should be hurried to the ordeal; 
a regulation repeated with some variations in the laws of 
Ethelred, Cnut, and Henry I.^ The Carlovingian legisla- 
tion establishes a similar principle,^ while the canons of 
Burckhardt show it to be still in force in the eleventh cen- 

• Chart, Commun. Laudun. (Baluz. et Mansi IV. p. 39.) 

2 Consuetud. Tornacens. g iii. (D'Achery III. 551.) 

3 Ut deinceps non sint digni juramento sed ordalio. — Legg. Edwardi 
cap. iii.; ^thelredi cap. i. ^ i ; Cnuti Ssecul. cap. xxii., xxx.; Henrici I. 
cap. Ixv. I 3. 

4 Capit. Car. Mag. i. ann. 809, cap. xxviii. — Capit Ludov. Pii. i. ann. 
819. 



EMPLOYED AS A PUNISHMENT. 341 

tury.^ A hundred and fifty years later, the legislation of 
Flanders manifests the same tendency, the code granted to 
Bruges in T190 providing that a first accusation of theft 
should be decided by witnesses, while a second was to be 
met by the cold-water ordeal.^ In the German municipal 
law of the thirteenth ^century, the same principle is observ- 
able. A man who had forfeited his legal privileges by con- 
viction for theft or similar crimes was no longer admitted to 
the oath, but on subsequent accusations was compelled to 
choose between the hot iron, the cauldron, and a combat 
with a champion ; and similarly an officer of the mint issuing 
false money was permitted the first time to swear to his 
ignorance, but on a second offence he had to submit to the 
ordeal. In the burgher law of ISorthern Germany, indeed, 
previous suspicion was sufficient to force the accused to the 
ordeal in place of the oath.^ The contemporary jurispru- 
dence of Spain has a somewhat similar provision, by which 
a woman accused of homicide could not be exposed to the 
ordeal, unless she could be proved utterly abandoned, for 
which a curious standard was requisite,* and this is the more 
remarkable, since by the same code a procuress was forced 
at once to the red-hot iron to prove her innocence. In the 
legislation of Charlemagne there is an elaborate provision, 
by which a man convicted seven times of theft was no longer 
allowed to escape on payment of a fine, but was forced to 
undergo tlie ordeal of fire. If he succumbed, he was put to 
death; if he escaped unhurt, he was not discharged as inno- 
cent, but his lord was allowed to enter bail for his future 

' Burchardi Decret. Lib, xvi. cap. 19. 

2 Keure de la Chatellenie de Bruges, | 28. (Warnkonig, Hist, de la 
Fland. IV. 371.) 

^ Jar. Provin. Alaman. cap. clxxxvi, ^| 4, 6, 7; cap. ccclxxiv. — Jur. 
Provin. Saxon. Lib. i. Art. 39.— Sachsische Weichbild, Art. xcii. ^ 2. 
— Richstich Landrecht, cap. lii. 

* Si non fuere provada por mala, que aya yazido con cinco omes. — 
Fuero de Baega (Villadiego, Fuero Juzgo, ful. 317 a). 

29* 



312 THE ORDEAL. 

good behavior^ — a mode at once of administering punish- 
ment and of ascertaining whether his death would be agree- 
able to Heaven. When we thus regard it as a penalty on 
those who by misconduct had forfeited the confidence of 
their fellow-men, the system loses part of its absurdity, in 
proportion as it departs from the principle under which it 
was established. 

There is also another aspect in which it is probable that 
the ordeal was viewed by those whose common sense must 
have shrunk from it as a simple appeal to the judgment of 
God. There can be little doubt that it was frequently found 
of material use in extorting confession or unwilling testi- 
mony. By the early codes, as in the primitive Greek and 
Roman law, torture could be applied only to slaves, and the 
ordeal was a legalized torture, applied under circumstances 
peculiarly provocative of truth, and as such we occasionally 
find regulations which enable the freeman to escape by com- 
purgation, while the slave is required to undergo the ordeal.^ 
In those ages of faith, the professing Christian, conscious of 
guilt, must indeed have been hardened, who could undergo 
the most awful rites of his religion, pledging his salvation on 
his innocence, and knowing under such circumstances that 
the direct intervention of Heaven could alone save him from 



' Capit, Car. Mag. ill. ann 813, cap. 46. 

2 Concil. MogURt, ann. 847, can. xxiv. — Burchardi Decret. Lib. xvi. 
cap. 19. — Keure de Gand, ^^ 7, 8, 12 (Warnkonig, II. 228. 

The law of William the Conqueror (Tit. II. c. 3. — Thorpe, I. 488) by 
which the duel was reserved for the Norman, and the vulgar ordeal for 
the Saxon, might be supposed to arise from a similar distinction. In 
reality, however, it M^as only preserving the ancestral customs of the races, 
giving to the defendant the privilege of his own law. The duel was un- 
known to the Anglo-Saxons, who habitually employed the ordeal, while 
the Normans, previous to the Conquest, according to Houard, who is 
good authority (Anc. Loix Franc. I. 221-222), only appealed to the 
sword. 



EMPLOYED AS A TORTURE. 343 

having his hand boiled to rags/ after which he was to meet 
the full punishment of his crime, and perhaps in addition 
lose a member for the perjury committed. With such a 
prospect, all motives would conspire to lead him to a prompt 
and frank acknowledgment in the early stages of the proceed- 
ings against him. These views are strengthened by the fact 
that when, in the thirteenth century, the judicial use of tor- 
ture, as a means of obtaining testimony and confession, was 
becoming systematized and generally employed, the ordeal 
was falling into desuetude and rapidly disappearing. The 
latter had fulfilled its mission, and the former was a substi- 
tute better fitted for an age which reasoned more, believed 
less, and at the same time was quite as arbitrary and violent 
as its predecessor. A further confirmation of this supposi- 
tion is afforded by the coincidence that the only primitive 
jurisprudence which excluded the ordeal — that of the Wisi- 
goths — was likewise the only one which habitually permitted 
the use of torture,^ the only reference to the ordeal in their 
code being a provision which directs its employment as a 
preliminary to the more regular forms of torture. 

In fact, the ordeal was practically looked upon as a tor- 
ture by those whose enlightenment led them to regard as a 
superstition the faith popularly reposed in it. An epistle 
which is attributed both to Stephen V. and Sylvester II. con- 
demns the whole system on the ground that the canons forbid 
the extortion of confessions by heated irons and boiling 
water; and that a credulous belief could not be allowed to 
sanction that which was not permitted by the fathers.^ When, 

1 The severity of the ordeal, when the sufferer had no friends among 
the operators to save him, may be deduced from the description of a hand 
when released from its three days' tying up after its plunge into hot water: 
"inflatam admodum et excoriatam sanieque jam carne putrida effluentem 
dexteram invitus ostendit." (Du Cange, s. v. Aquce Ferv. yudichcvi.) In 
this case, the sufferer was the adversary of an abbey, the monks of which 
perhaps had the boiling of the kettle. 

2 L. Wisig. L. VI. Tit. i. \ 3. 

3 Ivon. Carnot. Epist. 74 — Can Consuluisti, Caus. 11. q. 5. 



344 THE ORDEAL. 

therefore, at the Council of St. Baseul, a priest named Adal- 
ger, in confessing the assistance he had rendered to Arnoul 
of Rheims during Charles of Lorraine's resistance to the 
usurpation of Hugh Capet, offered to substantiate his testi- 
mony by undergoing the ordeal, he did it in terms which 
show that he expected it to be regarded as a torture giving 
additional weight to evidence — "If any of you doubt this 
and deem me unworthy of belief, let him believe the fire, the 
boiling water, the glowing iron. Let these tortures convince 
those who disbelieve my words. "^ It is observable that he 
omits the cold-water as not being a torture, just as in the 
ancient Indian law the limitation referred to above as appli- 
cable to the red-hot iron, the poison, and the balance, did 
not apply to the cold-water ordeal, or to that in which was 
administered the water in which an idol had been dipped.^ 
In the same way, some among the European ordeals, such 
as that of the Eucharist, of bread and cheese, and bier-right, 
do not come within the class of tortures, but they addressed 
themselves powerfully to the conscience and imagination of 
the accused, whose callous fortitude no doubt often gave 
way under the trial. In our own country, and almost within 
our own time, the latter ordeal was revived in one instance 
with this object, and the result did not disappoint the expec- 
tations of those who undertook it. In the case of People vs. 
Johnson, tried in New York in 1824, the suspected murderer 
was led from his cell to the hospital where lay the body of 
the victim, which he was required to touch. Dissimulation 
which had been before unshaken failed him at the awful mo- 
ment; his overstrung nerves gave way, and a confession was 
faltered forth. The proceeding was sustained by court, and 
a subsequent attempt at retraction was overruled.''' The 

' Concil. Basol. cap. xi. Rainer, private secretaiy of Arnoul, offered 
to prove his statement by giving up a slave to walk the burning plough- 
shares in evidence of his truth, (Ibid. cap. xxx.) 

2 Yajnavalkya, 5. (Asiatic Researches, I. 402.) 

3 Wharton and Stille's Med. Jiirisp , 2d. Edit. i860. 



INFLUENCE OF IMAGINATION. 345 

powerful influence of such feelings is shown in a custom 
which, as recently as 1815, was still employed at Mandeure, 
near Montbelliard, and which is said to be even yet in use 
in some of the remoter districts of the Ardennes. When a 
theft has been committed, the inhabitants are summoned to 
assemble after vespers on Sunday at the place of judgment. 
There the mayor calls upon the guilty person to make resti 
tution and live in isolation for six months. If this appeal 
prove fruitless, recourse is had to the trial of the staff, in 
which two magistrates hold aloft a piece of wood, under 
which every one is bound to pass. No instance, it is said, 
is on record in which the culprit dares to do this, and he is 
always left alone. ^ It is easy thus to imagine how the older 
forms of ordeal may have conduced to the discovery of crime 
in ages of lively superstition. A case occurring about the 
commencement of the twelfth century is a fair illustration of 
the manner in which it frequently worked on the imagination 
of those whose lives or fortunes were at stake. Andre de 
Trahent, a vassal of the convent of St. Mary of Saintes, 
claimed certain property belonging to the convent. On the 
final hearing it was decreed that he must abandon his claim 
unless he could prove it by oath and ordeal. This he agreed 
to do, and on the appointed day he appeared with his men 
ready to undergo the trial. As there were two pieces of pro- 
perty in question, two ordeals were required. The caldrons 
of water were duly heated and Andre's men were prepared 
for the attempt, when his courage gave way; he abruptly 
abandoned his claim and submitted himself to the mercy of 
the abbess.'^ 

There are two peculiarities of the system, perhaps worth 
alluding to, which may be thought to militate against the 
theory of its use as a torture. The one is the permission some- 

* Michelet, Origines du Droit, p. 349. — Proost, Jugements de Dieu, 
p. 80. This seems to be derived from the skirsla of the Norsemen de- 
scribed above. 

2 Polyptichum Irminonis, App. No. 34 (Paris, 1836, p. 373.) 



346 THE ORDEAL. 

times granted of putting forward substitutes or champions, 
who dared the fire or water as freely as the field of single 
combat. Of this custom so many examples have already 
been given incidentally, that further instances would be su- 
perfluous, and I would only add that it is nowhere permitted 
as a general rule by any code, except in the case already 
quoted of the ordeal of the cross, where it was a privilege 
accorded to the old or infirm, and probably only as a local 
custom. That a person rich enough to purchase a substitute, 
or powerful enough to force some unhappy follower or vassal 
to take his place, should obtain a favor not generally allowed, 
is a matter of course in the formative periods of society ; 
accordingly, it will be observed that all the instances of the 
kind mentioned above relate to those whose dignity or station 
may well have rendered them exceptional. In fact, this is 
only the corollary of the regulations already alluded to by 
which, in some places, compurgation was allowed to free- 
men, while slaves were hurried to the ordeal, just as they 
were to the torture. 

The other objection to our hypothesis is that to some ex- 
tent the common ordeal was a plebeian process, while patri- 
cians arrogated to themselves the wager of battle. This 
distinction, however, hardly existed before the rise of feu- 
dalism gave all privileges to those who were strong enough 
to seize them, and even then it was by no means universal. 
We have already seen that, although in the early part of the 
eleventh century the Emperor Henry 11. undoubtedly pro- 
mulgated such a rule, yet Glanville, a hundred and fifty 
years later, considers the red-hot iron as noble, and that in 
the thirteenth century the feudal law of Germany prescribes 
the wassei'-urteyll iox territorial disputes between gentlemen. 
In the earlier codes the distinction is unknown, so that we 
are justified in* assuming that no general principles can be 
deduced from a regulation so late in its appearance and so 
uncertain in its application. 



CONFIDENCE REPOSED IN THE ORDEAL. 347 
CONFIDENCE REPOSED IN THE ORDEAL. 

The degree of confidence really inspired by the results of 
the ordeal is a somewhat curious subject of speculation, on 
which definite opinions are not easily reached. Judicially, the 
trial was, for the most part, conclusive; he who had duly sunk, 
under water, walked unharmed among the burning shares, 
or withdrawn an unblistered hand from a caldron of legal 
temperature, stood forth among his fellows as innocent. So, 
even now, the verdict of twelve fools or knaves in a jury- 
box may discharge a criminal, against the plainest dictates of 
common sense; but in neither case would the sentiments of 
the community be changed by the result. The reverential 
feelings which alone could impart faith in the system seem 
scarcely compatible with the practice of compounding for 
ordeals, through which a man was permitted to buy himself 
off, by settling the matter with his accuser. This mode of 
adjustment was not extensively introduced, but it nevertheless 
existed among the Anglo-Saxons,^ while among the Franks 
it was a settled custom, permitted by all the texts of the Salic 
law, from the earliest to the latest.^ By this a person con- 
demned by the court to undergo the ordeal could, by a 
transaction with the aggrieved party, purchase the privilege 
of clearing himself by canonical compurgation, and thus 
escape the severer trial. He was bound to pay his accuser 
only a portion of the fine which he would incur if proved 
guilty — a portion varying with different offences from one- 
fourth to one-sixth of the wer-gild. The interests of the 
tribunal were guarded by a clause which compelled him to 
pay to the^r^^^, or judge, the full /redum, or public fine, if 

' Dooms of Ethelstan, i cap. 21. 

2 First Text, Tit. Liii. and L. Emend. Tit. LV. — It is on this custom 
that Montesquieu relies to support his theory of the absence of negative 
proofs in the Frankish jurisprudence. The fallacy of the argument is 
however shown by the existence of a similar privilege in the Anglo-Saxon 
laws, with which the learned jurist endeavors to establish a special contrast. 



348 THE ORDEAL. 

nis conscience impelled him to submit to an arrangement for 
more than the legal percentage. 

Charlemagne, at the commencement of his reign, does not 
seem to have entertained much respect for the judgment of 
God when he prescribed the administration of the ordeal for 
trifling affairs only, cases of magnitude being reserved for 
the regular investigation of the law.^ Thirty years later, the 
public mind appears afflicted with the same doubts, for we 
find the monarch endeavoring to enforce confidence in the 
system by his commands.^ How far he succeeded in this 
difficult attempt we have no means of ascertaining; but a 
rule of English law,' nearly four hundred years later, during 
the expiring struggles of the practice, would show that the 
result was regarded as by no means conclusive. By the 
assizes of Clarendon in ii 66, which directed that all male- 
factors indicted for murder, robbery, and other felonies 
should be at once tried by the water ordeal, it was provided 
that those who had confessed or who had been found in 
possession of stolen property should not be allowed the 
privilege of clearing themselves in this manner; and a still 
more irreverential rule decreed that those who were pro- 
nounced innocent by the judgment of God, if regarded as 
guilty by common report, should have eight days to quit the 
kingdom, under pain of outlawry.^ In the revision of these 
laws, made at Northampton ten years later, it was provided 
that in all cases those who passed safely through the ordeal 

* Quod si accusatus contendere voluerit de ipso perjurio stent ad cru- 
cem. . . . Hoc vero de minoribus rebus. De majoribus vero, aut de 
statu ingenuitatis, secundum legem custodiant. — Capit. Car, Mag. ann. 
779, ^ lo. That this was respected as law in force, nearly a hundred 
•years later, is shown by its being included in the collection of Capitularies 
by Benedict the Levite. (Lib. v. cap. 196.) 

2 Ut omnes judicio Dei credant absque dubitatione. — Capit. Car. Mag. 
I. ann. 809, § 20. 

3 Assisa facta apud Clarendune ^§ 12, 13, 14 (Gesta Henrici II. T. II. 
p. clii. — M. R. Series.) 



CONFIDENCE REPOSED IN THE ORDEAL. 349 

should give bail for their future good conduct, except in 
charges of murder or aggravated felony when they were 
banished within forty days, under penalty of outlawry as 
before.^ 

St. Ivo of Chartres, though he had no scruple in recom- 
mending and enjoining the ordeal, and, on one occasion at 
least, pronounced its decisions as beyond appeal, yet has 
placed on record his conviction of its insufficiency, and his 
experience that the mysterious judgment of God not infre- 
quently allowed in this manner the guilty to escape and the 
innocent to be punished.''* A case related by Peter Cantor 
in the twelfth century shows how recklessly it often was 
abused as a relief to careless judges in doubtful cases. Two 
Englishmen were returning in company from a pilgrimage to 
the Holy Land, when one of them wandered off to the shrine 
of St. Jago de Compostella, and the other went directly 
home. The kindred of the absent one accused the latter of 
murdering his companion; as no evidence was procurable 
on either side, he was hurried to the ordeal, convicted, and 
executed, shortly after which the missing man came back in 
safety.^ 

The manifest iiijustice of the decisions thus rendered by 
the ordeal put a severe strain on the faith of believers, and 
led them to the most ingenious sophistry for an explanation. 
When, in 1127, the sacrilegious murder of Charles the Good, 
Earl of Flanders, sent a thrill of horror throughout Europe, 
Lambert of Redenberg, whose participation in the crime was 
notorious, succeeded in clearing himself by the hot iron. 
Shortly afterwards he undertook the siege of Ostbourg, which 

1 GestaHenrici 11. T. I. p. 108.— Cf. Bracton. Lib. III. Tract, ii. cap. 

2 Simili modo, cauterium militis nullum tibi certum preebet argunientum, 
cum per examinationem ferri candentis occulto Dei judicio multos videa- 
mus noceutes liberates, multos innocentes saepe damnatos. — Ivon. Carnot, 
Epist. cccv. 

8 Pet. Cantor. Verb. Abbreviat. c. Ixxviii. 

30 



35° THE ORDEAL. 

he prosecuted with great cruelty, when he was killed in a 
sally of the besieged. The pious Galbert assumes that Lam- 
bert, notwithstanding his guilt, escaped at the ordeal in con- 
sequence of his humility and repentance, and philosophically 
adds: 1'Thus it is that in battle the unjust man is killed, 
although in the ordeal of water or of fire he may escape, if 
truly repentant. "V The same doctrine was enunciated under 
John Cantacuzenes, in the middle of the fourteenth century, 
by a Bishop of Didymoteichos in Thrace. A frail fair one 
being violently suspected by her husband, the ordeal of hot 
iron was demanded by him. In this strait she applied to 
the good Bishop, and he, being convinced of her repentance 
and intention to sin no more, assured her that in such a 
frame of mind she might safely venture on the trial, and she 
accordingly carried the glowing bar triumphantly twice 
around the Bishop's chair, to the entire satisfaction of her 
lord and master.^ 

In fact it was a recognized doctrine of the church that 
confession, absolution, and repentance so thoroughly washed 
away a sin that a culprit thus prepared could safely tempt the 
justice of God. A case related by Caesarius of Heisterbach 
as a most edifying example illustrates the curious nature of 
the superstition thus inculcated by the religious teachers of 
the period. In the diocese of Utrecht, a fisherman noto- 
riously maintained illicit relations with a woman, and fearing 
to be called to account for it by an approaching synod, 
where he would be convicted by the red-hot iron, and be 
forced to marry her, he consulted a priest. This ghosily 
counsellor advised him that, if he was firmly resolved to sin 
no more, he could safely deny the fact and endure the ordeal, 
after receiving absolution. The event verified the predic- 
tion ; he carried the burning iron unhurt, and to the sur- 
prise of all the country round he was acquitted. Shortly 

' Vit. Carol. Comit. Flandren. cap. xx. 

2 Collin cle Plancy, op. cit. s. v. Fcr CJuuid. 



CONFIDENCE REPOSED IN THE ORDEAL. 351 

afterwards, while in his boat, a companion expressed his 
wonder, when the fisherman, whose short-lived repentance 
was already over, boastingly struck his hand on the water, 
exclaiming, " It hurt me no more than that!" By the mar- 
vellous justice of God, the water was to him as red-hot iron, 
and as he hastily withdrew his hand the skin peeled off in 
strips.^ Even as late as 1539, the learned Inquisitor Ciruelo 
reproves the use of ordeals because the accused, though 
innocent of the special crime at issue, may succumb in con- 
sequence of other offences; or though guilty may escape 
because he has confessed and received absolution ; and he 
states that he had personally known more than one case in 
which women, rightly accused of adultery by their husbands 
and forced to undergo the ordeal, had thus succeeded in 
being acquitted.^ 

This doctrine of Ciruelo's that the innocent were some- 
times liable to conviction on account of previous misdeeds 
was likewise a belief of old standing. A striking instance of 
the vague notions current is afforded in the middle of the 
eleventh century by a case related by Othlonus, in which a 
man accused of horse-stealing was tried by the cold-water 
ordeal and found guilty. Knowing his own innocence, he 
appealed to the surrounding monks, and was told that it 
must be in consequence of some other sin not properly re- 
deemed by penance. As he had confessed and received 
absolution before the trial, he denied this, till one of them 
pointed out that in place of allowing his beard to grow, as 
was meet for a layman, he had impiously carried the smooth 
chin reserved for ecclesiastics. Confessing his guilt, pro- 
mising due penance, and vowing never to touch his beard 
with a razor again, he was conducted a second time to the 
water, and being now free from all unrepented sin, he was 
triumphantly acquitted. It is added that, taking advantage 

' Caesar. Heisterbach. Dial. Mirac. Dist. x. c. xxxv. 

2 Ciruelo, Reprovacion de las Supersticiones, P. 11. c. vii. 



352 THE ORDEAL. 

of a quibble as to the kind of instrument employed, he lapsed 
again into the sin of shaving, when the anger of Heaven 
manifested itself by allowing him to fall into the hands of an 
enemy, who put out his eyes.^ 

Yet, on the other hand, the ordeal sometimes was regarded 
as the most satisfactory kind of proof, entitled to respect 
beyond any other species of evidence. The age was not 
logical, men acted more from impulse than from reason, and 
the forms of jurisprudence were still in a state too chaotic 
for regular and invariable rules to be laid down. The con- 
fusion existing in the popular mind is well illustrated by a 
case occurring in the twelfth century. A serf of the Abbey 
of Marmoutiers married a serf who had been given by the 
Viscount of Blois to one of his retainers named Erbald. 
The husband purchased his wife's liberty, and by paying an 
additional sum had the deed of manumission confirmed by 
the Viscount and Viscountess. Years passed away, the serf 
and wife died, and then also their son, when their property 
fell to the abbey, which enjoyed it until the heirs of Erbald 
and the Viscount claimed it. The monks produced the 
deed of manumission, and the Viscountess, then the only 
surviving witness to the transaction, testified to its authen- 
ticity, but to no purpose. The claimants demanded the 
wager of battle, and the monks, in refusing this as unsuited 
to their calling, were obliged to produce a man who offered 
to undergo the ordeal of red-hot iron to prove the validity 
of the deed. Then the claimants at last desisted, but still 
succeeded in extorting sixteen livres from the abbey as the 
price of appending their signatures to the controverted 
deed.^ 

In general, however, as the result depended mostly upon 
those who administered the ordeal, it conferred an irrespon- 

• Othlon, Nan-at. de Mirac. quod nuper accidit, &c. (Patrol, CXLVI, 

243-4-) 

2 Polyptichum Irniiiionis, App. No. 20 (Paris, 1836, p. 354). 



CONFIDENCE REPOSED IN THE ORDEAL. 353 

sible power to release or to condemn, and it would be 
expecting too much of human nature to suppose that men 
did not yield frequently to the temptation to abuse that 
power. When Sigurd Thorlaksson was accused by Saint 
Olaf the King of the murder of his foster-brother Thoralf, 
and offered to clear himself by the red-hot iron. King Olaf 
accepted his offer, and appointed the next day for the trial 
at Lygra, where the bishop was to preside over it. When 
Sigurd went back at night to his ship, he said to his comrades 
that their prospects were gloomy, for the King had probably 
caused himself the death of Thoralf, and then brought the 
accusation against them, adding, "For him, it is an easy 
matter to manage the iron ordeal so that I doubt he will 
come ill off who tries it against him;" whereupon they 
hoisted sail in the darkness and escaped to their home in the 
Faroe Islands.^ The injustice thus hinted at must often have 
been praccised, and must have shaken the most robust faith, 
and this cause of disbelief would receive additional strength 
from the fact that the result itself was not seldom in doubt, 
victory being equally claimed by both parties. Of this we 
have already seen examples in the affairs of the lance of St. 
Andrew and of the Archbishop of Milan, and somewhat 
similar is an incident recorded by the Bollandists in the life 
of St. Swithin, in which, by miraculous interposition, the 
opposing parties beheld entirely different results from an 
appeal to the red-hot iron.^ 

Efforts of course were made from time to time to preserve 
the purity of the appeal, and to secure impartiality in its 
application. Clotair II., in 595, directs that three chosen 

J Olaf Haraldssons Saga cxlv. (Laing's Heimskringla, II. 210.) 
2 Enimvero minim fuit ultra modum, quod fautores arsuram et infla- 
tionem conspiciebant ; criminatores ita sanam ejus videbant palmam, quasi 
penitus fulvum non tetigisset ferrum. — Mirac. S. Swiihuni c. ii. | 37. In 
this case, the patient was a slave, whose master had vowed to give him to 
the church in case he escaped. 

30* 



354 THE ORDEAL. 

persons shall attend on each side to prevent collusion ;^ and 
among the Anglo-Saxons, some four hundred years later, 
Ethelred enjoins the presence of the prosecutor under penalty 
of loss of suit and fine of twenty ores, apparently for the 
same object, as well as to give authenticity to the decision.^ 
So in Hungary, the laws of St. Ladislas, in 1092, direct that 
three sworn witnesses shall be present to attest the innocence 
or guilt of the accused as demonstrated by the result.^ A 
law adopted by the Scottish Parliament under William the 
Lion, in the second half of the twelfth century, shows that 
corruption was not uncommon, by forbidding those con- 
cerned in the administration of ordeals from receiving bribes 
to divert the course of justice,* and a further precaution was 
taken by prohibiting the Barons from adjudging the ordeal 
without the intervention of the sheriff to see that law and 
justice were observed,^ In the trial by red-hot iron, a 
widely prevailing custom ordered that for three days pre- 
vious the hand should be wrapped up to guard against its 
being fortified; and among the Greeks a careful provision 
was made that the hand should be thoroughly washed and 
allowed to touch nothing afterwards, lest there should be an 
opportunity of anointing it with unguents which would enable 
it to resist the fire.^ These regulations show that evils were 
recognized, but we may reasonably hesitate to believe that 
the remedies were efi'ectual. 

THE CHURCH AND THE ORDEAL. 

We have seen above that the Church readily accepted the 
pagan practices of its Barbarian converts, and gave them 

' Ad utramque partem sint ternas personas electas, ne conludius fieri 
possit. — Decret. Chlolharii II. cap. vii, 

2 Ethelred, in. § 4, 

3 Synod. Zabolcs can. 27 (Batthyani, Legg. Eccles. Hung. T. I. 

P- 439)- 

4 Statut. Wilhelmi Regis cap. 7^3. (Skene II. 4.) 

5 Ibid, cap. 1 6, 6 Du Cange, s. v. Ferruni candens. 



THE CHURCH AND THE ORDEAL. 355 

fresh claim to confidence by surrounding them with the most 
impressive solemnities of the faith. Notwithstanding the 
worldly advantage derivable from this policy, there were 
some minds superior to the superstition or the cunning of 
their fellows. Even as early as the commencement of the 
sixth century, Avitus, Bishop of Vienne, remonstrated freely 
with Gundobald on account of the prominence given to the 
battle ordeal in the Burgundian code ; and some three cen- 
turies later, St. Agobard, Archbishop of Lyons, attacked the 
whole system in two powerful treatises, which in many points 
display a breadth of view and clearness of reasoning far in 
advance of his age.^ Shortly after this, the Papacy took a 
position antagonistic to the ordeal, and virtually maintained 
it with consistency to the end. Leo IV., about the middle 
of the ninth century, condemned the ordeal in a letter to the 
English bishops; some thirty years later, Stephen V. re- 
peated the disapproval ; in the tenth century, Sylvester IL 
opposed it; and succeeding pontiffs, such as Alexander IL 
and Alexander IIL in vain protested against it. In this, the 
chiefs of the Church placed themselves in opposition to their 
subordinates. No ordeal could be conducted without priestly 
aid, and the frequency of its employment, which, has been 
seen above, shows how little the Papal exhortations were 
respected by the ministers of the Church. Nor were they 
contented with simple disregard ; defenders were not want- 
ing to declare the practice to be in accordance with the 
Divine law, and it was repeatedly sanctioned by provincial 
synods and councils. In 799 the Council of Salzburg pre- 
scribed the red-hot iron for the trial of witches and necro- 
mancers.^ In 810, Ahyto, Bishop of Basle, could suggest 
no other mode of determining doubtful cases of consan- 
guinity between husband and wife.^ In 853, the Synod of 

1 The " Liber adversus Legem Gundobadi" and "Liber contra Judi- 
cium Dei." 

2 Concil. Salisburg. I. can. ix. (Dalham Concil. Salisburg. p. 35.) 

3 Ahytonis Capitular, cap. xxi, (D'Achery I. 585.) 



356 THE ORDEAL. 

Soissons ordered Burchard, Bishop of Chartres, to prove his 
fitness for the episcopal office by undergoing the ordeal.^ 
Hincmar, Archbishop of Rheims, lent to it all the influence 
of his commanding talents and position ; the Council of 
Mainz in S88, and that of Tribur near Mainz in 895, recom- 
mended it; that of Tours in 925 ordered it for the decision 
of a quarrel between two priests respecting certain tithes f 
the synod of the province of Mainz in 1028 authorized the 
hot iron in a case of murder;^ that of Elne in 1065 recog- 
nized it; that of Auch in 1068 confirmed its use; a peniten- 
tial of the same period in Bohemia ordered the ordeal for 
those who pleaded ignorance when accused of marrying 
within the prohibited degrees;* Burckhardt, Bishop of 
Worms, whose collection of canons enjoyed high authority, 
in 1023 assisted at the Council of Selingenstadt, which di- 
rected its employment. The Synod of Gran, in 1099, 
decided that the ordeal of hot iron might be administered 
during Lent, except in cases involving the shedding of 
blood. ^ In the twelfth century a council of Chartres, acting 
under the authority of Calixtus II., ordered the red-hot iron 
to decide a case of alleged violation of the right of asylum 
in a church.^ Moreover, we find St. Bernard alluding ap- 
provingly to the conviction and martyrdom of heretics by 
the cold-water process,' of which Guibert de Nogent gives 
us an instance wherein he aided the Bishop of Soissons in 
administering it to two backsliders with complete "success.® 

• Capit. Carol. Calvi Tit. xi. c. iii. (Baluze.) 

2 Concil. Turon. ann. 925 (Martene et Durand Thes. T. IV. pp. 
72-3). 

3 Annalist. Saxo. ann. 1028. 

4 Hofler, Concilia Pragensia, p. xiv. Prag, 1862. 

5 Batthyani, Legg. Eccles. Hung, II. 126. 

6 Hildeberti Cenoman. Epist. (D'Acliery Spicileg. III. 456.) 

7 Examinati judicio aquae mendaces inventi sunt .... aqua eos non 
suscipiente. — In Cantica, Sermon. 66 cap. 12. 

8 De Vita Sua Lib. in. cap. 18. 



USED BY THE CHURCH. 357 

In 1 157 the red-hot iron ordeal was prescribed by the Coun- 
cil of Rheims for all persons accused of belonging to the 
fast-growing sect of the Cathari or Manicheans, whose pro- 
gress was alarming the church ;^ and in 1167 two heretics at 
Vezelai were tried by cold water in the presence of the Arch- 
bishop of Lyons and two bishops, when, singularly enough, 
they escaped.^ Other cases, moreover, are related by Peter 
Cantor, in which good Catholics were successfully convicted 
of heresy in this manner, and one instance presents a curious 
view of the singular confusion which existed in judicial logic 
at the time. A poor fellow who professed the most entire 
orthodoxy, and against whojn there was no proof, was or- 
dered to carry the red-hot iron. This he refused unless the 
assembled bishops would prove that he could do so without 
incurring mortal sin by tempting God. This they were un- 
able to accomplish, so all unpleasant doubts were settled by 
promptly having him burnt. '^ Even after the Lateran Coun- 
cil of 1215, some miracles related by Csesarius of Heister- 
bach show that the conviction of heretics by the hot iron was 
regarded as a matter of course.* 

Prelates, moreover, were everywhere found granting char- 
ters containing the privilege of conducting trials in this 
manner. It was sometimes specially appropriated to mem- 
bers of the church, who claimed it, under the name of "Lex 
Monachorum," as a class privilege exempting them from 
being parties to the more barbarous and uncanonical wager 
of battle;^ and in 1061 a charter of John, Bishop of Avran- 
ches, to the Abbot of Mont S. Michel, alludes to hot water 

' Concil. Remens. ann. 1157, can. i. (Martene Ampl. Coll. VII. 

75-) 

2 Hist. Vizeliacens. Lib. iv. (D'Achery Spicileg. II. 560 ) 

3 Pet. Cantor. Verb. Abbreviat. cap. Ixxviii. (Patrol. CCV. 230.) 

4 Caesar. Heisterbach. Dial. Mirac. Dist. ill. c. xvi. xvii. 

5 Theodericus Abbas Vice-Comitem adiit paratus aut calidi ferri judic'o 
secundum legem monachorum per suum hominem probare, aut scuto et 
baculo secundum legem secularium defifendere. — Anna!. Benedict, l. 57, 
No. 74, ann. 1036 {ap. Houard, Loix Anc. Fran9. I. 267). 



35^ THE ORDEAL. 

and iron as the only mode of trying priests charged with 
offences of magnitude.^ There was therefore but slender 
ground for canonists so eminent as St. Abbo of Fleury, and St. 
Ivo of Chartres, to insist that ecclesiastics enjoyed immunity 
from it,^ a claim previously advanced in England by Ecg- 
behrt, Archbishop of York, who piously declared that their 
oath on the cross was sufficient for acquittal, and that if 
guilty their punishment must be left to God.^ So little, how- 
ever, was this privilege admitted, that, so late as 1171, we 
find Alexander III. stigmatizing as an intolerable abuse the 
fact that throughout Sweden prelates of the highest rank 
were forced to undergo the trial by red-hot iron.* 

Ivo, while thus denying the liability of churchmen to the 
ordeal, yet admitted that it could be properly used on lay- 
men, and even pronounces its result to be beyond appeal.^ 
Pope Calixtus 11. himself, about the same period, gave his 
sanction to the system, in the Council of Rheims, in 11 19.® 
About the same time, the learned priest, Honorius of Autun, 
specifies the benediction of the iron and water of the ordeal 
as part of the legitimate functions of his order ;^ and even 
Gratian, in 1151, hesitates to condemn the whole system, 
preferring to consider the canon of Stephen V. as prohibit- 
ing only the ordeals of hot water and iron.^ 

' Judicium ferri igniti et aquge ferventis Abrincis portaretur, si clerici 
lapsi in culpam degradationis forte invenirentur. — Chart. Joan. Abrinc. 
(Patrolog. CXLVII. 266.) 

2 Abbon. Floriac. Epist. viii. — Ivon, Carnot Epist. Ixxiv. 

3 Dialog. Ecbert. Ebor. Interrog. iii. (Thoi-pe, II. 88.) 

4 Alex. PP. III. Epist. ap. Hardouin VI. ii. 1439. 
s Ivon. Carnot. Epist. ccxxxii., ccxlix., cclii. 

6 Du Cange, S. v. Judicium probabile. 

7 Gemma Animae, Lib. I. cap. 181. At least this is the only reading 
which will make sense of the passage — " Horum ofificium est . . . vel 
nuptias vel arma, vel peras, vel baculos vel judicia ferre et aquas vel 
candelas . . . benedicere," where " ferre et aquas" is evidently corrupt 
for "ferri et aquae." 

8 Hoc autem utrum ad omnia genera purgalionis, an ad hoec duo tan- 
tum, quae hie prohibita esse videntur, pertineat, non immerito dubitatur 



OPPOSITION OF THE PAPACY. 359 

This fluctuating policy of the church is easily explained. 
During the tenth and eleventh centuries, the chair of St. 
Peter was occupied too often by men whose more appro- 
priate sphere of action was the brothel or the arena, and the 
influence of the Papacy was correspondingly feeble.^ The 
Eternal City was civilly and morally a lazar-house, and the 
Popes had too much to do in maintaining themselves upon 
their tottering thrones to have leisure or inclination for com- 
bined and systematic efforts to extend their power. The 
Italian expeditions of the Saxon and Franconian Emperors 
.gradually brought Italy out of the isolation into which it had 
fallen, and under Teutonic auspices the character of the Pon- 
tiffs improved as their circle of influence widened. At 
length such men as Gregory VII. and Alexander III. were 
able to claim supremacy over both temporal and spiritual 
affairs, and, after a long resistance on the part of the great 
body of ecclesiastics, the tiara triumphed over the mitre. 
During this period, the clergy found in the administration of 
the ordeal a source of power and profit which naturally ren- 
dered them unwilling to abandon it at the Papal mandate. 
Chartered privileges had accumulated around it, such as we 
have already seen in the case of the judicial duel, and these 
privileges were participated in or held exclusively by pre- 
lates and churches and monasteries. Thus in 1148 we find 
Thibaut the Great of Champagne making over to the church 

propter sacrificium zelotypise, et illud Gregorii. — Can. Consuluisti, caus. 11. 
qusest. 5, 

' In 963, a council of bishops held by Otho I. to depose John XII. 
pronounced that the Pope had turned his residence into a brothel — 
"sanctum palatium lupanar et prostibulum fecisse," and was in the habit 
of leading his own soldiers " incendia fecisse, ense accmctum, galea et 
lorica indutum esse." (Liutprandi Hist. Otton, cap. x.) Otho III. in 
998, when restoring a portion of the alienated patrimony of St. Peter, 
alludes to the diminished influence and authority of the Papal See. 
" Romam caput mundi profitemur. Romanam Ecclesiam matrem om- 
nium Ecclesiarum esse testamur; sed incuria et inscientia Pontificum 
longe suae claritatis titulos obfuscasse." (Goldast. Constit. Imp. I. 226, j 



360 THE ORDEAL. 

of St. Mary Magdalen the exclusive privilege of administer- 
ing the oaths required on such occasions in the town of 
Chateaudun/ and in 1182 the Vicomte de Beam conferred 
on the Abbey de la Seauve the revenue arising from the 
marble basin used for the trial by boiling water at Gavarret.^ 
In the statutes of King Coloman of Hungary, collected in 
1099, there is a provision prohibiting the administration of 
the ordeal in the smaller churches, and reserving the privi- 
lege to the cathedral seats and other important establish- 
ments.^ 

According to a grant from Peregrin de Lavedan to the 
monastery of Saint- Pe, in Bigorre, the fee for administering 
the hot-water ordeal was five crowns, of which two were 
paid to the monastery, two to the cathedral at Tarbes, and 
one to the priest who blessed the water and stone.* By th.e 
laws of St. Ladislas of Hungary, in 1092, the stipend of the 
officiating priest for the red-hot iron was double that which 
he received for the water ordeal ;^ and how fiercely these 
rights were enforced is shown in a case related by Peter 
Cantor in the twelfth century. A man accused of crime was 
sentenced to undergo the Ordeal of cold water. When 
stripped and bound, and seated on the edge of the tank, the 
prosecutor withdrew the suit, but the official of the court 
refused to release the accused until he should pay fees 
amounting to nine livres and a half. A long wrangle en- 
sued, until the defendant declared that he would pay nothing, 
but would rather undergo the ordeal, and, after establishing 
his innocence, would give fifty sols to the poor. He was 
accordingly thrown in and sank satisfactorily, but on being 

' Du Cange, s. v, Adramire. 

2 Revue Hist, de Droit, 1861, p. 478. 

3 Decret. Coloman. c. 11, (Batthyani T. I. p. 454.) 
* Lagreze, Hist, du Droit dans les Pyrenees, p. 246. 

5 " Presbyter de ferro duas pensas et de aqua unam pensam accipiat." 
Synod. Zabolcs, ann. 1092 can. 27 (Batthyani I. 439). 



FEES ACCRUING TO THE CHURCH. 36 1 

drawn out was met with a fresh claim from the officiating 
priest, of five sols, for blessing the water. ^ 

As these fees were paid, sometimes on conviction and 
sometimes on acquittal, there was danger that, even without 
direct bribery, self-interest might affect the result. Thus by the 
acts of the Synod of Lillebonne, in 1080, a conviction by the 
hot-iron ordeal entailed a fine for the benefit of the bishop ;^ 
and it was apparently to prevent such influences that the 
Swedish code, compiled by Andreas Archbishop of Lunden 
early in the thirteenth century, made the successful party, 
whether the prosecutor or defendant, pay the fee to the 
officiating priest — a regulation sufficiently degrading to the 
sacerdotal character.^ But besides these pecuniary advan- 
tages, the ordeal had a natural attraction to the clergy, as it 
afforded the means of awing the laity, by rendering the 
priest a special instrument of Divine justice, into whose 
hands every man felt that he was at any moment liable to 
fall ; while, to the unworthy, its attractions were enhanced 
by the opportunities which it gave for the worst abuses. 
From the decretals of Alexander III. we learn authoritatively 
that the extortion of money from innocent persons by its 
instrumentality was a notorious fact* — a testimony confirmed 
by Ekkehardus Junior, who, a century earlier, makes the same 
accusation, and moreover inveighs bitterly against the priests 
who were wont to gratify the vilest instincts in stripping 

' Pet. Cantor. Verb. Abbreviat. cap. xxiv. 

2 Orderic. Vital. Lib. v. cap. v. 

3 Leg. Scanicar. Lib. vii. cap. 99. (Ed. Thorsen p. 171.) There is 
another provision that in certain cases of murder the accused could not be 
compelled to undergo the ordeal of the red-hot ploughshares unless the 
accuser was supported by twelve conjurators, when, if the accused was 
successful each of the twelve was obliged to pay him three marks, and the 
same sum to the priest. — lb. L. v. c. 58 (p. 140). It is scarcely intelli- 
gible why these ordeals were not allowed to be performed in any week in 
which there was a church-feast. (Ibid. p. 1 70-1,) 

* Post. Concil. Lateran. P. 11. cap. 3, il. 

3^ 



362 THE ORDEAL. 

women for the purpose of exposing them to the ordeal of 
cold water. ^ 

With all these influences, moral and material, to give to 
the local clergy a direct interest in the maintenance of the 
ordeal, it is no wonder that they battled resolutely for its 
preservation. In this, however, as in so many other details 
of ecclesiastical policy, centralization triumphed. When the 
Papal authority reached its culminating point, a vigorous 
and sustained effort to abolish the whole system was made 
by the Popes who occupied the pontifical throne from 1159 
to 1227. Nothing can be more peremptory than the prohi- 
bition uttered by Alexander III.'^ About the same time we 
find the celebrated Peter Cantor earnestly arguing that it was 
a sinful tempting of God and a most uncertam means of ad- 
ministering justice, which he enforces by numerous instances 
of innocent persons who, within his own knowledge, had been 
condemned by its means and put to death ; and he declares 
that any priest exorcising the iron or water, or administering 
the oaths preliminary to the judicial duel, is guilty of mortal 
sin.^ About the same time Albero, a priest of Mercke near 
Cologne, offered to pass through fire to prove the orthodoxy 
of his teaching that the sacraments were vitiated in the hands 
of sinful priests, but his request was refused on the ground 
that skilful sorcery might thus lead to the success cf a flagrant 
heresy.* In 1181, Lucius III, pronounced null and void the 
acquittal of a priest charged with homicide, who had under- 
gone the water ordeal, and ordered him to prove his inno- 
cence with compurgators,^ and the blow was followed by his 

• Holophernicos .... Presbyteros, qui animas hominum carissime 
appreciatas vendant; foeminas nudatas aquis immergi impudicis oculis 
curiose perspiciant, aut grandi se pretio redimere cogant. — De Casibus S. 
Galli cap. xiv. 

2 Alex. PP. III. Epist. 74. 

3 Pet. Cantor. Verb. Abbreviat. cap. Ixxviii. 

4 Anon. Libell. adversus Errores Alberonis (Martene Ampl. Coll. IX. 
1265). 

s Can. Ex tuarum, Extra, Dc purgatione canonica. 



REPRESSIVE SECULAR LEGISLATION. 363 

successors. Under Innocent III., the Fourth Council of 
Lateran, in 1215, formally forbade the employment of any 
ecclesiastical ceremonies in such trials;^ and as the moral 
influence of the ordeal depended entirely upon its religious 
associations, a strict observance of this canon must speedily 
have swept the whole system into oblivion. Yet at this very 
time the inquisitor Conrad of Marburg was employing in 
Germany the red-hot iron as a means of condemning his 
unfortunate victims by wholesale, and the chronicler relates 
that, whether innocent or guilty, few escaped the test.'^ The 
canon of Lateran, however, was actively followed up by the 
Papal legates, and the system may consequently be considered 
to have fairly entered on its decline. 



REPRESSIVE SECULAR LEGISLATION. 

Enlightened legislators were not slow in seconding the 
efforts of the Papacy. Perhaps the earliest instance of secular 
legislation directed against the ordeal,, except some charters 
granted to communes, is an edict of Philip Augustus in 1200, 
bestowing certain privileges on the scholars of the University 
of Paris, by which he ordered that a citizen accused of 
assaulting a student shall not be allowed to defend himself 
either by the duel or the water ordeal.^ In England, a re- 
script of Henry III., dated January 27, 1219, directs the 
judges then starting on their circuits to employ other modes 
of proof — '^ Seeing that the judgment of fire and water is 
forbidden by the Church of Rome."* A few charters and 

' Nee . . . quisquam purgation! aquae ferventis vel frigidse, seu ferri 
candentis riuim cujuslibet benedictionis seuconsecrationis impendat. — Con- 
cil, Lateran. can. 18. In 1227, the Council of Treves repeated the pro- 
hibition, but only applied it to the red-hot iron ordeal. " Item, nullus 
sacerdos canden^ ferrum ben-di-;at." — Concil. Trevirens. ann. 1227, 
cap. ix. 

2 Trithem. Chron. Hirsaug. ann. 1 215. 

3 Fontanon, IV. 942. 4 Rymer, Feed. I. 228. 



364 THE ORDEAL. 

confirmations, dated some years subsequently, allude to the 
privilege of administering it; but Matthew of Westminster, 
when enumerating, under date of 1250, the remarkable 
events of the half century, specifies its abrogation as one of 
the occurrences to be noted, ^ and we may conclude that 
thenceforth it was practically abandoned throughout the 
kingdom. This is confirmed by the fact that Bracton, whose 
treatise was written a few years later, refers only to the 
wager of battle as a legal procedure, and, when alluding to 
other forms, speaks of them as things of the past. About 
the same time, Alexander II. of Scotland forbade its use in 
cases of theft. ^ Nearly contemporary was the Neapolitan 
Code, promulgated in 1231, by authority of the Emperor 
Frederic II., in which he not only prohibits the use of the 
ordeal in all cases, but ridicules, in a very curious passage, 
the folly of those who could place confidence in it.^ We 
may conclude, however, that this was not effectual in eradi-. 

^ Prohibitum est judicium quod fieri consuevit per ignem et per aquam. — 
Mat. Westmon. ann. 1250. 

2 De cetero non fiat judicium per aquam vel ferrum, ut consuetum fuit 
antiquis temporibus, — Statut. Alex. II. cap. 7^3. 

3 Leges quae a quibusdam simplicibus sunt dictae paribiles .... prsesentis 
nostri nominis sanciionis edicto in perpetuum inhibentes, omnibus regni 
nostri judicibus, ut nullus ipsas leges paribiles, quae absconsse a veritate 
deberent potius nuncupari, aMquibus fidelibus nostris indicet .... Eorum 
etinim sensum non tam corrigendum duximus quam ridendum, qui natu- 
ralem candentis ferri calorem tepescere, imo (quod est stultius) frigescere, 
nulla justa causa superveniente, confidunt; aut qui reum criminis constitu- 
tum, ob conscientiam laesam tantum asserunt ab aquas frigidse elemento 
non recipi, quem submergi potius aeris competentis retentio non permittit. 
— Constit. Sicular. Lib. ii. Tit. 31. This last clause would seem to 
allude to some artifice of the operators by which the accused was prevented 
from sinking in the cold-water ordeal when a conviction was desired. 

This common sense view of the miracles so generally believed is the 
more significant as coming from Frederic, who, a few years previously, 
was ferociously vindicating with fire and sword the sanctity of the Holy 
Seamless Coat against the aspersions of unbelieving heretics. See his 
Constitutions of 1221 in Goldastus, Const. Imp. I. 293-4. 



IT FALLS INTO DESUETUDE. 365 

eating it, for, fifty years later, Charles of Anjou found it 
necessary to repeat the injunction.^ About the same time, 
Waldemar II. of Denmark, Hako ilakonsen of Iceland and 
Norway, and soon afterwards Birger Jarl of Sweden, fol- 
lowed the example.^ In Frisia we learn that the inhabitants 
still refused to obey the Papal mandates, and insisted on 
retaining the red-hot iron, a contumacy which Emo, the 
contemporary Abbot of Wittewerum, cites as one of the 
causes of the terrible inundation of 12 19 f though a century 
later the Laws of Upstallesboom show that ordeals of all 
kinds had fallen into desuetude.* In France, we find no 
formal abrogation promulgated ; but the contempt into which 
the system had fallen is abundantly proved by the fact that 
in the ordinances and books of practice issued during the 
latter half of the century, such as the Etablissements of St. 
Louis, the Conseil of Pierre de Fontaines, the Coutumes du 
Beauvoisis of Beaumanoir, and the Livres de Jostice et de Fief, 
its existence is not recognized even by a prohibitory allusion, 
the judicial duel thenceforward monopolizing the province 
of irregular evidence. Indeed, a Latin version of the Cou- 
tumier of Normandy, dating about the middle of the thir- 
teenth century, or a little earlier, speaks of it as a mode of 
proof formerly employed in cases where one of the parties 
was a woman who could find no champion to undergo the 
wager of battle, adding that it had been forbidden by the 
church, and that such cases were then determined by in- 
quests.^ 

1 Statut. MSS. Caroli I. cap. xxii. (Du Cange, s. v. Lex Parib.^ 

2 Konigswarter, op. cit. p. 176. 

3 Emon. Chron. ann. 1219 (Matthaei Anaiect. III. 72). 

4 Issued in 1323. 

6 Cod. Leg. Norman, P. 11. c. x. \\ 2, 3. (Ludewig, Reliq. Msctorum. 
VII. 292.) It is a little singular that the same phrase is retained in the 
authentic copy of the Coutumier, in force until the close of the sixteenth 
century. — Anc. Cout. de Normandie, c. 77 (Bourdot de Richebourg, 
IV. 32). 

31* 



366 THE ORDEAL. 

Germany was more tardy in yielding to the mandates of 
the church. The Teutonic knights who wielded their prose- 
lyting swords in the Marches of Prussia introduced the ordeal 
among other Christian observances, and in 1225 Honorius 
III., at the prayer of the Livonian converts, promulgated a 
decree by which he strictly interdicted its use for the future.^ 
Even in 1279 we find the Council of Buda, and in 1298 that 
of Wurzburg, obliged to repeat the prohibition uttered by 
that of Lateran.^ These commands enjoyed little respect, 
and the independent spirit of the Empire still refused obe- 
dience to the commands of the Church. Even in the four- 
teenth century the ancestral customs were preserved in full 
vigor as regular modes of procedure in a manual of legal 
practice still extant. An accusation of homicide could be 
disproved only by the judicial combat, while in other felo- 
nies a man of bad repute had no other means of escape than 
by undergoing the trial by hot water or iron.^ 

In Aragon, Don Jay me I., in 1247, prohibited the ordeal 
in the laws of Huesca, and in 1248 in his revision of the con- 
stitution of Majorca.* In Castile and Leon, the Council of 
Palencia, in 1322, was obliged to threaten with excommuni- 
cation all concerned in administering the ordeal of fire or of 
water,^ which proves how little had been accomplished by 
the enlightened code of the "Partidas," issued about 1260 
by Alfonso the Wise. In this the burden of proof is expressly 
thrown upon the complainant, and no negative evidence is 
demanded of the defendant, who is specially exempted from 

1 Can. Dilecti, Extra, De Purgatione Vulgari. 

2 Batthyani, Legg. Eccles. Hung. T. ii. p. 436. — Hartzheim, IV. 27. 

2 Richtstich Landrecht, cap. Lii. The same provisions are to be found 
in a French version of the Speculum Suevicum, probably made towards 
the close of the fourteenth century for the use of the western provinces of 
the Empire. — Miroir de Souabe, P. i. c. xlviii. (Ed. Matile, Neufchatel, 

1843.) 

* Du Cange, s. vv. Ferru77i candens, Datalia. 
5 Concil. Palentin. ann. 1322, can. xxvi. 



PERSISTENCE OF FAITH. 367 

the necessity of producing it ;^ and although in obedience to 
the chivalrous spirit of the age, the battle ordeal is not 
abolished, yet it is so limited as to be practically a dead letter, 
while no other form of negative proof is even alluded to. 

Although the ordeal was thus removed from the admitted 
jurisprudence of Europe, the principles of faith which had 
given it vitality were too deeply implanted in the popular 
mind to be at once eradicated, and accordingly, as we have 
seen above, instances of its employment continued occasion- 
ally for several centuries to disgrace the tribunals. The 
ordeal of battle, indeed, as shown in the preceding essay, 
was not legally abrogated until long afterward ; and the lon- 
gevity of the popular belief, upon which the whole system 
was founded, may be gathered from a remark of Sir William 
Staundford, a learned judge and respectable legal authority, 
who, in 1557, expresses the same confident expectation of 
Divine interference which had animated Hincmar or Poppo. 
After stating that in an accusation of felony, unsupported by 
evidence, the defendant had a right to wager his battle, he 
proceeds : ^^ Because in that the appellant demands judgment 
of death against the appellee, it is more reasonable that he 
should hazard his life with the defendant for the trial of it, 
than to put it on the country .... and to leave it to God, 
to whom all things are open, to give the verdict in such case, 
scilicet, by attributing the victory or vanquishment to the one 
party or the other, as it pleaseth Him."^ Nearly about the 
same time, Ciruelo, who for thirty years was Inquisitor at 
Saragossa, alludes to cases in which he had personally known 
of its employment, thus showing that it was in popular use, 
even though not prescribed by the law, in Spain during the 
middle of the sixteenth century.^ 

' Non es tenuda la parte de probar lo que niega porque non lo podrie 
facer. — Las Siete Partidas, P. in. Tit. xiv. 1. i. 

2 Plees del Corone, chap. xv. (quoted in i Barnewall & Alderson, 433). 

8 Ciruelo, Reprovacion de las Supersticiones. P. ii. cap. vii. Sala- 
manca, 1539. (IV. Ed. Barcelona, 1628.) 



368 THE ORDEAL. 

Nor should we, in weighing these popular tendencies, 
leave out of consideration the reverent faith which the Latin 
church has never ceased to inculcate in the continued inter- 
ference of God and the Saints in the daily affairs of life. 
Not only may the sick be miraculously healed, but the inno- 
cence of those exposed to false accusations may be proved, 
and even the course of human justice be confounded. Thus, 
a book of devotion to the Virgin, printed in France in the 
early part of the sixteenth century, piously relates a case 
wherein a woman guilty of incest was condemned to be 
burnt, but through the interposition of Our Lady she was 
saved, and the priest, who had violated the secrecy of the 
confessional in becoming her accuser, was put to death. ^ 

While the prohibitions uttered by the Papacy had un- 
doubtedly much to do in influencing monarchs to abolish 
the ordeal, there were other causes of scarcely less weight 
working to the same end. The revival of the Roman law 
in the twelfth and thirteenth centuries and the introduction 
of torture as an unfailing expedient in doubtful cases did 
much to influence the secular tribunals against all ordeals. 
So, also, a powerful assistant must be recognized in the rise 
of the communes, whose sturdy common sense not infre- 
quently rejected its absurdity. These influences, however, 
have been discussed at some length in the previous essay, 
and it is scarce worth while to repeat what has there been 
said, except to add that, as a recognized legal procedure, the 
ordeal succumbed with a less prolonged struggle than the 
single combat. 

• Heures a lusaige de Renee (Rennes). Paris, Simon Vostie. Without 
date, but containing an almanac of 1507 — 1527. 

Une feme son filz cogneut, Done fut par condamnation 

Dont elle fist confession. Jugee a bruler droit ou tort. 

Le prestre celer ne la ceut, Par la vierge eut remission, 

Mais en fist accusation. Et le Prestre livre a la mort. 



PERPETUITY OF SUPERSTITION. 369 

Yet no definite period can be assigned to the disappearance 
in any country of the appeals to Heaven handed down from 
our Bactrian ancestors in the illimitable past. We have 
seen above how certain forms of the ordeal such as bier-right 
and the trial by cold water, have lingered virtually to our 
own times, though long since displaced from the statute- 
book; and we should err if we deemed the prohibition of 
the system by law-givers to be either the effect or the cause 
of a change in the constitution of the human mind. The 
mysterious attraction of the unknown, the striving for the 
unattainable, the yearning to connect our mortal nature with 
some supernal power — all these mixed motives assist in main- 
taining the superstitions which we have thus passed in review. 
Even though the external manifestations may have been 
swept away, the potent agencies which vivified them have 
remained, not perhaps' less active because they work more 
secretly. One generation of follies after another, strangely 
affiliated, waits on the successive descendants of man, and 
perpetuates in another shape the superstition which seemed 
to be eradicated. In its most vulgar and abhorrent form, 
we recognize it in the fearful epidemic of sorcery and witch- 
craft which afflicted the sixteenth and seventeenth centuries; 
sublimed to the verge of heaven, we see it reappear in the 
seraphic theories of Quietism; descending again towards 
earth, it stimulates the mad vagaries of the Convulsionnaires. 
In a different guise, it leads the refined scepticism of the 
eighteenth century to a belief in the supernatural powers of 
the divining rod, which could not only trace out hidden 
springs and deep- buried mines, but could also discover 
crime, and follow the malefactor through all the doublings 
of his cunning flight.^ Even at the present day, as various 

1 When, in 1692, Jacques Aymar attracted public attention to the mira- 
cles of the divining-rod, he was called to Lyons to assist the police in dis- 
covering the perpetrators of a mysterious murder, which had completely 
baffled the agents of justice. Aided by his rod, he traced the criminals, 
by land and water, from Lyons to Beaucaire, where he found in prison a 



370 THE ORDEAL. 

references in the preceding pages sufficiently attest, there is 
a lurking undercurrent of superstition which occasionally 
rises into yiew and shows that we are not yet exempt from the 
weakness of the past. Each age has its own sins and follies 
to answer for — happiest that which best succeeds in hiding 
them, for it can scarce do more. Here, in our boasted 
nineteenth century, when the triumph of human intelligence 
over the forces of nature, stimulating the progress of material 
prosperity with the press, the steam-engine, and the tele- 
graph, has deluded us into sacrificing our psychical to our 
intellectual being — even here the duality of our nature re- 
asserts itself, and in the obscene crudity of Mormonism 
and in the fantastic mysteries of spiritism we see a protest 
against the despotism of mere reason. If we wonder at 
these perversions of our noblest attributes, we must remem- 
ber that the intensity of the reaction measures the oiiginal 
strain, and in the insanities of the day we thus may learn 
how utterly we have forgotten the Divine warning, '^Man 
shall not live by bread alone !" 

man whom he declared to be a participant, and who finally confessed the 
crime, Aymar was at length proved to bg merely a clever charlatan; but 
the mania to which he gave rise lasted through the eighteenth century, 
and nearly at its close his wonders were rivalled by a, brother sharper, 
Campetti Even within the last few yeaj-s the divining-rod has been re- 
vived and used in Western Pennsylvania for the discovery of oil wells. 

A good account of Ayrnar's gareer and the discussion to which it gave 
rise may be found in Prof. Rubio y Diaz's " Estiidios sobre la Evocacion 
de los Espiritus," Cadiz, i860, pp. 116-28. 



IV. 
TORTURE. 



The preceding essays have traced the development of 
sacramental purgation and of the ordeal as resources devised 
by human ingenuity when called upon to decide questions 
too intricate for the impatient intellect of a rude and semi- 
barbarous age. There was another mode, however, of 
attaining the same object, which has received the sanction of 
the wisest lawgivers during the greater part of the world's 
history, and our survey of man's devious wanderings in the 
search of truth would be incomplete without glancing at the 
subject of the judicial use of torture. The ordeal and tor- 
ture, in fact, are virtually substitutes for each other. It will 
be seen that they have rarely co-existed, and that, as a gene- 
ral rule, the legislation which depended on the one rejected 
the other, as credulous faith or pitiless rationalism has pre- 
dominated in the popular mind. 

In the early stages of society, the judge or the pleader 
whose faith does not lead him to rely upon an appeal to God 
naturally seeks to extort from the reluctant witness a statement 
of what he might desire to conceal, or from the presumed 
criminal a confession of his guilt. To accomplish this, the 
readiest means would seem to be the infliction of pain, to 
escape from which the witness would sacrifice his friends, 
and the accused would submit to the penalty of his crime. 
The means of administering graduated and effectual torment 
would thus be sought for, and the rules for its application 



372 TORTURE. 

would in time be developed into a regular system, forming 
part of the recognized principles of jurisprudence. 

In the earliest civilization, that of Egypt, it would seem as 
though torture was too opposed to the whole theory of judi- 
cial proceedings to be employed, if we are to believe the 
description which Diodorus Siculus gives of the solemn and 
mysterious tribunals, where written pleadings alone were 
allowed, lest the judges should be swayed by the eloquence 
of the human voice, and where the verdict was announced, in 
the unbroken silence, by the presiding judge touching the suc- 
cessful suitor with an image of the Goddess of Truth. ^ Yet 
a papyrus recently interpreted gives us a judicial record of 
a trial, in the reign of Rameses IX. of the XXth Dynasty 
(circa 1200 B. C), of the robbers of the tomb of the Pha- 
raoh Sebakemsauf, and this shows how the accused, after 
confession, were tortured for confirmation, first by scourging 
and then by squeezing the hands and feet, showing that, 
sometimes at least, this mode of ascertaining the truth was 
employed.^ 

Among the Semitic races, we find torture used as a regular 
judicial process by the Assyrians,'' though the Mosaic juris- 
prudence is free from any indication that the Hebrew law- 
dispensers regarded it as a legitimate expedient. Earnest 
advocates of the torture system, in the eighteenth century, 
however, did not hesitate to adduce the ordeal of the bitter 
water of jealousy as a torture which justified the employment 
in modern times of the rack and strappado. 

' Diod. Sicul, I. Ixxv. — Sir Gardiner Wilkinson (Ancient Egyptians, 
Vol. II.) figures several of these little images. 

2 See the translation of the Amherst Papyrus by Chabas, Melanges 
Egyptologiques, III.^ Serie, T. II. p. 17 (Sept. 1873). The interpreta- 
tion of the groups relating to the hands and feet is conjectural, but they 
unquestionably signify some kind of violence. M. Chabas qualifies this 
passage as highly important, being the first evidence that has reached us 
of the judicial use of torture in Egypt. The question has been a debated 
one, but the previous evidence adduced M'as altogether inconclusive. 

3 Tenormant, Man. de I'Hist. Ancienne de I'Orient, II. 141. 



THE ARYANS. 373 

In the earliest Aryan records, so far as we can judge from 
the fragments remaining of the Zoroastrian law, torture had 
no recognized place. Astyages was rather a Mede than a 
Persian, and therefore no conclusion can be drawn from his 
readiness to employ it when he sought to extort the truth 
from unwilling witnesses, as related by Herodotus;* but the 
savage punishments which Darius boasts of inflicting upon 
the rival pretenders to his throne^ presuppose a readiness to 
resort to the most violent means of intimidation, which could 
scarcely fail to include torture as an extra-judicial means of 
investigation when milder methods failed. 

To the other great branch of the Aryan stock which found- 
ed the Indian civilization, torture would likewise seem to have 
been unknown as a legitimate resource; at least it has left 
no trace of its existence in the elaborate provisions of the 
Hindu law as handed down to us for nearly three thousand 
years. In the Institutes of Manu there are very minute 
directions as to evidence, the testimony preferred being that 
of witnesses, whose comparative credibility is very carefully 
discussed, and when such evidence is not attainable, the 
parties, as we have seen above, are ordered to be sworn or 
tried by the ordeal. These principles have been transmitted 
unchanged to the present day.^ 

GREECE AND ROME. 

The absence of torture from the codes of these Aryan 
races is not to be attributed to any inherent objection to its 
use, but rather to the employment of the ordeal, which in all 
ages formed part of their jurisprudence, and served as an 

> Herod. I. 116. 

2 Behistun Inscription, col. ii. 25-6. (Records of the Past, VII. 98-99.) 
It is worthy of remark that this Medic version of the Inscription is more 
circumstantial as to these inflictions than the Persian text translated by 
Rawlinson (Records I. 1 18-19). 

3 Manu Bk. viii. — Ayeen Akbery, Tit. Beyhar, Vol. II. p. 494. — Hal- 
hed's Code of Gentoo Laws, chap, xviii. 

32 



374 TORTURE. 

unfailing resort in all doubtful cases. When we turn to the 
Aryans who established themselves in Europe and aban- 
doned the ancestral custom of the ordeal, we find it at once 
replaced by the use of torture. Thus in Greece it was tho- 
roughly understood and permanently established. The 
oligarchical and aristocratic tendencies, however, which 
were so strongly developed in the Hellenic commonwealths, 
imposed upon it a limitation characteristic of the pride and 
self-respect of the governing order. As a general rule, no 
freeman could be tortured. Even freedmen enjoyed an 
exemption, and it was reserved for the unfortunate class of 
slaves, and for strangers who formed no part of the body 
politic. Yet there were exceptions, as among the Rhodians, 
whose laws authorized the torture of free citizens; and in 
other states it was occasionally resorted to, in the case of 
flagrant political offences ; while the people, acting in their 
supreme and irresponsible authority, could at any time 
decree its application to anyone irrespective of privilege. 
Thus, when Hipparchus was assassinated by Harmodius, 
Aristogiton was tortured to obtain a revelation of the plot, 
and several similar proceedings are related by Valerius Max- 
imus as occurring among the Hellenic nations.^ The inhu- 
man torments inflicted on Philotas, son of Parmenio, when 
accused of conspiracy against Alexander, show how little 
real protection existed when the safety of a despot was in 
question ; and illustrations of torture decreed by the people 
are to be seen in the proceedings relative to the mutilation 
of the statues of Hermes, and in the proposition, on the trial 
of Phocion, to put him, the most eminent citizen of Athens, 
on the rack. 

In a population consisting largely of slaves, who were 
generally of the same race as their masters, often men of 
education and intelligence and employed in positions of con- 
fidence, legal proceedings m.ust frequently have turned upon 
their evidence, in both civil and criminal cases. Their evi- 

' Lib. III. cap. iii. 



IN GREECE. 375 

dence, however, was inadmissible, except when given under 
torture, and then, by a singular confusion of logic, it was 
estimated as the most convincing kind of testimony. Con- 
sequently, the torturing of slaves formed an important por- 
tion of the administration of Athenian justice. Either party 
to a suit might offer his slaves to the torturer or demand 
those of his opponent, and a refusal to produce them was 
regarded as seriously compromising. When both parties 
tendered their slaves, the judge decided as to which of them 
should be received. Even without bringing a suit into court, 
disputants could have their slaves tortured for evidence with 
which to effect an amicable settlement. 

In formal litigation, the defeated suitor paid whatever 
damages his adversary's slaves might have undergone at the 
hands of the professional torturer, who, as an expert in such 
matters, was empowered to assess the amount of depreciation 
that they had sustained. It affords a curious commentary on 
the high estimation in which such testimony was held to 
observe that, when a man's slaves had testified against him 
on the rack, they were not protected from his subsequent 
vengeance, which might be exercised upon them without 
restriction. 

As the laws of Greece passed away, le_aving few traces on the 
institutions of other races, save those of Rome, it will suffice to 
add that the principal modes in which torture was sanctioned 
by them were the wheel, the ladder or rack, the comb with 
sharp teeth, the low vault, in which the unfortunate patient 
was thrust and bent double, the burning tiles, the heavy hog- 
skin whip, and the injection of vinegar into the nostrils.^ 

' Aristophanes (i?<2;2<^, 617) recapitulates most of the processes in vogue. 
Aiachos. koX vZq Saj-avi^aj ; 
Xanthias, ntcvna rponov, Iv iCKlfxani 

S'no-ttf, Kp£iJi.aa-a<;f vs-TOi)(^l^i fxa-TTiyZv, UpooVf 
a-TfsS'KZv, In S''si? ra? pivxc 0^01; Ij/p^soev, 

The best summary I have met with of the Athenian laws of torture is in 
Eschbach's "Introduction a I'Etude du Droit," § 268. 



376 TORTURE. 

In the earlier days of Rome, the general principles govern- 
ing the administration of torture were the same as in Greece. 
Under the Republic, the free citizen was not liable to it, and 
the evidence of slaves was not received without it. With 
the progress of despotism, however, the safeguards which 
surrounded the freeman were broken down, and autocratic 
emperors had little scruple in sending their subjects to the 
rack. 

Even as early as the second Triumvirate, a praetor named 
Q. Gallius, in saluting Octavius, chanced to have a double 
tablet under his toga. To the timid imagination of the future 
emperor, the angles of the tablet, outlined under the garment, 
presented the semblance of a sword, and he fancied Gallius 
tobe the instrument of a conspiracy against his life. Dis- 
sembling his fears for the moment, he soon caused the un- 
lucky praetor to be seized while presiding at his own tribunal, 
and after torturing him like a slave without extracting a con- 
fession, put him to death. ^ 

The incident was ominous of the future, when all the 
powers of the state were concentrated in the august person of 
the emperor. He was the representative and embodiment of 
the limitless sovereignty of the people, whose irresponsible 
authority was transferred to him. The rules and formularies, 
however, which had regulated the exercise of power, so long 
as it belonged to the people, were feeble barriers to the pas- 
sions and fears of Csesarism. Accordingly, a principle soon 
became engrafted in Roman jurisprudence that, in all cases 
of ''crimen majestatis," or high treason, the free citizen 
could be tortured. In striking at the ruler he had forfeited 
all rights, and the safety of the state, as embodied in the 
Emperor, was to be preserved at every sacrifice. 

The Emperors were not long in discovering and exercising 
their power. When the plot of Sejanus was discovered, the 
historian relates that Tiberius abandoned himself so entirely 

• Sueton. August, xxii. 



IN ROME. 377 

to the task of examining by torture the suspected accomplices 
of the conspiracy, that when an old Rhodian friend, who 
had come to visit him on a special invitation, was announced 
to him, the preoccupied tyrant absently ordered him to be 
placed on the rack, and on discovering the blunder had him 
quietly put to death, to silence all complaints. The shudder- 
ing inhabitants pointed out a spot at Capri where he indulged 
in these terrible pursuits, and where the miserable victims of 
his wrath were cast into the sea before his eyes, after having 
exhausted his ingenuity in exquisite torments.^ When the 
master of the world took this fearful delight in human agony, 
it may readily be imagined that law and custom offered little 
protection to the defenceless subject, and Tiberius was not 
the only one who relished these inhuman pleasures. The 
half-insane Caligula found that the torture of criminals by 
the side of his dinner-table lent a keener zest to his revels, 
and even the timid and beastly Claudius made it a point to 
be present on such occasions.^ 

Under the stimulus of such hideous appetites, capricious 
and irresponsible cruelty was able to give a wide extension 
to the law of treason. If victims were wanted to gratify the 
whims of the monarch or the hate of his creatures, it was 
easy to find an offender or to make a crime. Under Tibe- 
rius, a citizen removed the head from a statute of Augustus, 
intending to replace it with another. Interrogated before 
the Senate, he prevaricated, and was promptly put to the 
torture. Encouraged by this, the most fanciful interpreta- 
tion was given to violations of the respect assumed to be due 
to the late Emperor. To undress one's self or to beat a 
slave near his image; to carry into a latrine or a house of ill 
fame a coin or a ring impressed with his sacred features ; to 
criticize any act or word of his became a treasonable offence; 
and finally an unlucky wight was actually put to death for 

' Sueton. Tiberii Ixii. 
2 Ibid. Caii xxxii. — Claud, xxxiv. 
32* 



378 TORTURE. 

allowing the slaves on his farm to pay him honors on the 
anniversary which had been sacred to Augustus.^ 

So, when it suited the waning strength of paganism to 
wreak its vengeance for anticipated defeat upon the rising 
energy of Christianity, it was easy to include the new religion 
in the convenient charge of treason, and to expose its vota- 
ries to all the horrors of ingenious cruelty. If Nero desired 
to divert from himself the odium of the conflagration of 
Rome, he could turn upon the Christians, and by well- 
directed tortures obtain confessions involving the whole sect, 
thus giving to the populace the diversion of a persecution on 
a scale until then unknown, besides providing for himself 
the new sensation of the human torches whose frightful ago- 
nies illuminated his unearthly orgies.^ Diocletian even 
formally promulgated in an edict the rule that all professors 
of the hated religion should be deprived of the privileges of 
birth and station, and be subject to the application of tor- 
ture.^ The indiscriminate cruelty to which the Christians 
were thus exposed without defence, at the hands of those 
inflamed against them by all evil passions, may, perhaps, 
have been exaggerated by the ecclesiastical historians, but 
that frightful excesses were perpetrated under sanction of 
law cannot be doubted by any one who has traced, even in 
comparatively recent times and among Christian nations, the 
progress of political and religious persecution.* 

' Sueton. Tiber. Iviii. 

2 Tacit. Annal. xv. xliv. 

3 Lactant. de Mortib. Persecut. cap. xiii. 

* Tormentorum genera inaudita excogitabantur. (Ibid. cap. XV.) — 
When the Christians were accused of an attempt to burn the imperial 
palace, Diocletian " ira inflammatus, excarnificari omnes suos protinus 
prsecipit. Sedebat ipse atque innocentes igne torrebat." (Ibid. cap. xiv.) 
— Lactantius, or whoever was the real author of the tract, addresses the 
priest Donatus to whom it is inscribed: " Novies etiam tormentis crucia- 
tibusque variis subjectus, novies adversarium gloriosa confessione vicisti. 
.... Nihil adversus te verbera, nihil ungulse, nihil ignis, nihil ferrum, 



IN ROME. 379 

The torture of freemen accused of crimes against the state 
or the sacred person of the emperor thus became an admitted 
principle of Roman law. In his account of the conspiracy 
of Piso, under Nero, Tacitus alludes to it as a matter of 
course, and in describing the unexampled endurance of 
Epicharis, a freedwoman, who underwent the most fearful 
torments without compromising those who possessed little 
claim upon her forbearance, the annalist indignantly com- 
pares her fortitude with the cowardice of noble Romans, 
who betrayed their nearest relatives- and dearest friends at 
the mere sight of the torture chamber.^ 

Under these limits, the freeman's privilege of exemption 
was carefully guarded, at least in theory. A slave while 
claiming freedom, or a man claimed as a slave, could not be 
exposed to torture j''^ and even if a slave, when about to be 
tortured, endeavored to escape by asserting his freedom, it 
was necessary to prove his servile condition before proceed- 
ing with the legal torments.^ In practice, however, these 
privileges were continually infringed, and numerous edicts 
of the emperors were directed to repressing the abuses which 
constantly occurred. Thus we find Diocletian forbidding 
the application of torture to soldiers or their children under 
accusation, unless they had been dismissed the service igno- 
miniously.* The same emperor published anew a rescript of 
Marcus Aurelius declaring the exemption of patricians and 
of the higher imperial officers, with their legitimate descend- 
ants to the fourth generation;^ and also a dictum of Ulpian 
asserting the same privilege in favor of decurions, or local 
town councillors, and their children.^ In 376, Valentinianwas 

nihil varia tormentorum genera valuerunt." (Ibid. cap. xvi.) Ample 
details may be found in Eusebius, Hist. Eccles. Lib, v. c, i, vi. 39, 41, 
VIII. passim, Lib. Martyrum; and in Cyprian. Epist x. (Ed. Oxon. 1682). 

I Tacit. Annal. XV. Ivi. Ivii. 2 L. 10 ^ 6, Dig. XLViii. xviii. 

3 L. 12, Dig. XLViii. xviii. (Ulpian.) 

* Const. 8 Cod. ix. xli. (Dioclet. et Maxim.) 

5 Const. II Cod. IX. xli. 6 ibid. 2 i. 



380 TORTURE. 

obliged to renew the declaration that decurions were only 
liable in cases oi inajestatis, and in 399, Arcadius and Hono- 
riiis found it necessary to explicitly declare that the privilege 
was personal and not official, and that it remained to them 
after laying down the decurionate.^ Theodosius the Great, in 
385, especially directed that priests should not be subjected 
to torture in giving testimony,^ the significance of which is 
shown by the fact that no slave could be admitted into holy 
orders. 

The necessity of this constant renewal of the law is indi- 
cated by a rescript of Valentinian, in 369, which shows that 
freemen were not infrequently tortured in contravention of 
law; but that torture could legally be indiscriminately in- 
flicted by any tribunal in cases of treason, and that in other 
accusations it could be authorized by the order of the em- 
peror.^ This power was early assumed and frequently exer- 
cised. Though Claudius at the commencement of his reign 
had sworn that he would never subject a freeman to the 
question, yet he allowed Messalina and Narcissus to admin- 
ister torture indiscriminately, not only to free citizens, but 
even to knights and patricians.* So Domitian tortured a 
man of praetorian rank on a doubtful charge of intrigue with 
a vestal virgin,^ and various laws were promulgated by seve- 
ral emperors directing the employment of torture irrespective 
of rank, in some classes of accusations. Thus, in 217, Cara- 
calla authorized it in cases of suspected poisoning by women. ^ 
Constantine decreed that unnatural lusts should be punished 
by the severest torments, without regard to the station of the 
offender.'^ Constantius persecuted in like manner sooth- 
sayers, sorcerers, magicians, diviners, and augurs, who 
were to be tortured for confession, and then to be put to 

1 Const. 16 Cod. IX. xli. 2 Const. 8 Cod. i. 3. 
3 Const. 4 Cod. IX. viii. 

* Dion. Cass. Roman. Hist. Lib. LX. (Ed. 1592, p. 776.) 

2 Sueton. Domit. cap. viii. To Domitian the historian also ascribes ihe 
invention of a new and infamously indecent kind of torture (Ibid. cap. x.). 

6 Const. 3 Cod. IX. xli. 7 Const, 31 Cod. ix. ix. 



IN ROME. 381 

death with every refinement of suffering.^ So, Justinian, 
under certain circumstances, ordered torture to be used on 
parties accused of adultery^ — a practice, however, which was 
already common in the fourth century, if we are to believe 
the story related by St. Jerome of a miracle occurring in a 
case of this nature.^ The power thus assumed by the monarch 
could evidently be limited only by his discretion in its 
exercise. 

One important safeguard, however, existed, which, if pro- 
perly maintained, must have greatly lessened the frequency 
of torture as applied to freemen. In bringing an accusation 
the accuser was obliged to inscribe himself formally, and 
was exposed to the lex talionis in case he failed to prove the 
justice of the charge.* A rescript of Constantine, in 314, 
decrees that in cases of majestatis, as the accused was liable 
to the severity of torture without limitation of rank, so the 
accuser and his informers were to be tortured when they 
were unable to make good their accusation.^ This enlight- 
ened legislation was preserved by Justinian, and must have 
greatly cooled the ardor of the pack of calumniators and 
informers, who, from the days of Sylla, had been encouraged 
and petted until they held in their hands the life of almost 
every citizen. 

In all this it must be borne in mind that the freeman of the 
Roman law was a Roman citizen, and that, prior to the ex- 
tension of citizenship generally to the subjects of the Empire, 
there was an enormous class deprived of the protection, such 
as it was, of the traditional exemption. Thus when, in 
Jerusalem, the Jews raised a tumult and accused St. Paul, 
without specifying his offence, the tribune forthwith ordered 
'^ that he should be examined by scourging, that he might 
know wherefore they cried so against him;" and when St. 

• Const. 7 Cod. IX. viii. 2 Novell, cxvii. cap. xv. \ i. 

3 Hieron. Epist. i. ad Innocent. 

■* Const. 17 Cod. IX. ii.— Const. 10 Cod. ix. xlvi. 

5 Const. 3 Cod. IX. viii. 



382 TORTURE. 

Paul proclaimed himself a Roman, the preparations for his 
torture were stopped forthwith, and he was examined by 
regular judicial process.^ The value of this privilege is fairly- 
exemplified by the envying remark of the tribune, '' With a 
great sum obtained I this freedom." 

All these laws relate to the extortion of confessions from 
the accused. In turning to the treatment of witnesses, we 
find that even with them torture was not confined to the 
servile condition. With slaves, it was not simply a conse- 
quence of slavery, but a mode of confirming and rendering 
admissible the testimony of those whose character was not 
sufficiently known to give their evidence credibility without 
it. Thus a legist under Constantine states that gladiators 
and others of similar occupation cannot be allowed to bear 
witness without torture;^ and, in the same spirit, a novel of 
Justinian, in 539, directs that the rod shall be used to extract 
the truth from unknown persons who are suspected of bear- 
ing false witness or of being suborned.^ 

It may, therefore, readily be imagined that when the evi- 
dence of slaves was required, it was necessarily accompanied 
by the application of torture. Indeed, Augustus declared 
that while it is not to be expressly desired in trifling matters, 
yet in weighty and capital cases the torture of slaves is the 
most efficacious mode of ascertaining the truth.* When we 
consider the position occupied by slavery in the Roman 
world, the immense proportion of bondmen who carried on 
all manner of mechanical and industrial occupations for the 
benefit of their owners, and who, as scribes, teachers, stew- 
ards, and in other confidential positions, were privy to almost 

1 Acts. XXII. 24 sqq. 2 L, 21 g 2, Dig. xxii. v. 

3 Novell, xc. cap. i. ^ i. 

4 Quaestiones neque semper in omni causa et persona desiderari debere 
arbitror; et cum capitalia et atrociora maleficia non aliter explorari et in- 
vestigari possunt, quam per servomm qusestiones, efficacissimas esse ad 
requirendam veritatem existimo et habendas censeo. — L. 8, Dig. XLyiii. 
xviii. (Paulus). 



IN ROME. 383 

every transaction of their masters, we can readily see that 
scarce any suit could be decided without involving the testi- 
mony of slaves, and thus requiring the application of torture. 
It was not even, as among most modern nations, restricted 
to criminal cases. Some doubt, indeed, seems at one time 
to have existed as to its propriety in civil actions, but 
Antoninus Pius decided the question authoritatively in the 
affirmative, and this became a settled principle of Roman 
jurisprudence, even when the slaves belonged to masters who 
were not party to the case at issue. ^ 

There was but one limitation to the universal liability of 
slaves. They could not be tortured to extract testimony 
against their masters, whether in civil or criminal cases ;^ 
though, if a slave had been purchased by a litigant to get his 
testimony out of court, the sale was pronounced void, the 
price was refunded, and the slave could then be tortured.^ 
This limitation arose from a careful regard for the safety of 
the master, and not from any feeling of humanity towards 
the slave. So great a respect, indeed, was paid to the rela- 
tionship between the master and his slave that the principle 
was pushed to its' fullest extent. Thus even an employer, 
who was not the owner of a slave, was protected against the 
testimony of the latter.* When a slave was held in common 
by several owners, he could not be tortured in opposition to 
any of them, unless one were accused of murdering his 
partner,^ A slave could not be tortured in a prosecution 
against the father or mother of the owner, or even against 

1 L, 9, Dig. XLVIIT, xviii. (Marcianus.) 

2 L. 9 I I, Dig. XLViii. xviii. — L. i ^ 16, Dig. XLViii. xvii. (Severus) 
— L. I § 18, Dig. XLVIII. xviii. (Ulpian.) 

3 Pauli Lib. v. Sentt. Tit. xvi. ^ 7. — The same principle is involved in 
a rescript of the Antonines. — L. I ^ 14, Dig. XLVIII. xvii. (Severus.) 

4 L. I ^ 7, Dig. XLVIII. xvii. The expression "in caput domini" 
applies as well to civil as to criminal: cases, — Pauli Lib. v. Sentt. Tit. 
xvi. I 5. 

5 L. 3, Dig. XLVIII. xviii. — Const. 13 Cod. ix. xli. 



384 TORTURE. 

the guardian, except in cases concerning the guardianship;' 
though the slave of a husband could be tortured against the 
wife.^ Even the tie which bound the freedman to his patron 
was sufficient to preserve the former from being tortured 
against the latter;^ whence we may assume that, in other 
cases, manumission afforded no protection from the rack and 
scourge. This question, however, appears doubtful. The 
exemption of freedmen would seem to be proved by the 
rescript which provides that inconvenient testimony should 
not be got rid of by manumitting slaves so as to prevent 
their being subjected to torture ;* while, on the other hand, 
a decision of Diocletian directs that, in cases of alleged 
fraudulent wills, the slaves and even the freedmen of the 
heir could be tortured to ascertain the truth. ^ 

This policy of the law in protectmg masters from the evi- 
dence of their tortured slaves varied at different periods. 
From an expression of Tacitus, it would seem not to have 
been part of the original jurisprudence of the republic, but 
to have arisen from a special decree of the Senate. In the 
early days of the empire, while the monarch still endeavored 
to veil his irresponsible power under the forms of law, and 
showed his reverence for ancient rights by evading them 
rather than by boldly subverting them, Tiberius, in prose- 
cuting Libo and Silanus, caused their slaves to be transferred 
to the public prosecutor, and was thus able to gratify his 
vengeance legally by extorting the required evidence.^ Sub- 
sequent emperors were not reduced to these subterfuges, for 

1 L. 10 § 2, Dig. XLViii. xviii. — Const. 2 Cod. ix. xli. (Sever, et 
Antonin. ami. 205). 

2 L. I ^ II, Dig. XLVIII. xvii. 

3 L. I ^ 9, Dig. XLVIII. xvii. 

4 L. I § 13, Dig. XLVIII. xvii. — Pauli Lib. v. Sentt. Tit. xvi. ^ 9. 

5 Const. 10 Cod. IX. xli, (Dioclet. et Maxim.) 

6 Tacit. Annal. II. 30. See also ill. 67. Somewhat similar in spirit 
was his characteristic device for eluding the law which prohibited the exe- 
cution of virgins (Sueton. Tiber. Ixi.), 



IN ROME. 385 

the principle became established that in cases of majestatis, 
even as the freeman was liable to torture, so his slaves could 
be tortured to convict him/ and as if to show how utterly- 
superfluous was the cunning of Tiberius, the respect towards 
the master in ordinary affairs was carried to that point that 
no slave could be tortured against a former owner with 
regard to matters which had occurred during his ownership.^ 
On the other hand, according to Ulpian, Trajan decided 
that when the confession of a guilty slave under torture 
implicated his master, the evidence could be used against 
the master, and this, again, was revoked by subsequent con- 
stitutions.^ Indeed, it became a settled principle of law to 
reject all incriminations of accomplices. 

Having thus broken down the protection of the citizen 
against the evidence of his slaves in accusations of treason, 
it was not difficult to extend the liability to other special 
crimes. Accordingly we find that, in 197, Septimius Se- 
verus specified adultery, fraudulent assessment, and crimes 
against the state as cases in which the evidence of slaves 
against their masters was admissible.* The provision re- 
specting adultery was repeated by Caracalla in 214, and 
afterwards by Maximus,^ and the same rule was also held to 
be good in cases of incest.^ It is probable that this increas- 
ing tendency alarmed the citizens of Rome, and that they 
clamored for a restitution of their immunities, for, when 
Tacitus was elected emperor, in 275, he endeavored to pro- 
pitiate public favor by proposing a law to forbid the testi- 
mony of slaves against their masters except in cases of ma- 

' This principle is embodied in innumerable laws. It is sufficient to 
refer to Constt. 6 | 2, 7 § i, 8 ^ i, Cod. ix. viii. 

2 L. 18^ 6, Dig. XLViii. xviii. (Paulus.) 

3 L. I § 19, Dig. XLVIII. xviii. (Ulpian.) 

4 Const. I Cod. IX. xli. (Sever et Antonin.) 

5 Constt. 3, 32 Cod. IX. ix. — L. 17, Dig. XLVIII. xviii. (Papin.) 

6 L. 5 Dig. XLVIII. xviii. (Marcian.) 



386 TORTURE. 

jestatis} No trace of such a law, however, is found in the 
imperial jurisprudence, and the collections of Justinian show 
that the previous regulations were in full force in the sixth 
century. 

Yet it is probable that the progress of Christianity pro- 
duced some effect in mitigating the severity of legal pro- 
cedure, and in shielding the unfortunate slave from the 
cruelties to which he was exposed. Under the republic, 
while the authority oi tht paterfamilias was still unabridged, 
any one could offer his slaves to the torture when he desired 
to produce their evidence. In the earlier times, this was 
done by the owner himself in the presence of the family, 
and the testimony thus extorted was carefully taken down to 
be duly produced in court ; but subsequently the proceeding 
was conducted by public officers — the quaestors and trium- 
viri capitales.^ How great was the change effected is seen 
by the declaration of Diocletian, in 286, that masters were 
not permitted to bring forward their own slaves to be tor- 
tured for evidence in cases wherein they were personally in- 
terested.^ This would necessarily reduce the production of 
slave testimony, save in accusations of majesiatis and other 
excepted crimes, to cases in which the slaves of third parties 
were desired as witnesses ; and even in these, the frequency 
of its employment must have been greatly reduced by the 
rule which bound the party calling for it to deposit in ad- 
vance the price of the slave, as estimated by the owner, to 
remunerate the latter for his death, or for his diminished 
value if he were maimed or crippled for life.^ When the 
slave himself was arraigned upon a false accusation and tor- 
tured, an old law provided that the master should receive 

' Fl. Vopisc. Tacit, cap. ix. 

2 Du Boys, Hist, du Droit Grim, des Peup. Anciens, pp. 297, 331, 332. 

3 Const. 7 Cod. IX. xli. (Dioclet. et Maxim.). 

* Pauli Lib. v. Senlt. Tit. xvi. \ 3.— See also LI. 6, 13 Dig. XLViii. 



IN ROME. 387 

double the loss or damage sustained ;^ and in ^8;^, Valenti- 
nian the Younger went so far as to decree that those who 
accused slaves of capital crimes should inscribe themselves, 
as in the case of freemen, and should be subjected to the /ex 
talionis if they failed to sustain the charge.^ This was an 
immense step towards equalizing the legal condition of the 
bondman and his master. It was apparently in advance of 
public opinion, for the law is not reproduced in the compila- 
tions of Justinian, and probably soon was disregarded. 

There were some general limitations imposed on the ap- 
plication of torture, but they were hardly such as to prevent 
its abuse at the hands of cruel or unscrupulous judges. An- 
toninus Pius set an example, which modern jurists might well 
have imitated, when he directed that no one should be tor- 
tured after confession to implicate others f and a rescript of 
the same enlightened emperor fixes at fourteen the minimum 
limit of age liable to torture, except in cases of ??iajestatis, 
when, as we have seen, the law spared no one, for in the 
imperial jurisprudence the safety of the monarch overrode 
all other considerations.* Women were spared during preg- 
nancy.^ Moderation was enjoined upon the judges, who were 
to inflict only such torture as the occasion rendered necessary, 
and were not to proceed further at the will of the accuser.® 
No one was to be tortured without the inscription of a formal 
accuser, who rendered himself liable to the lex talionis, un- 
less there were violent suspicions to justify it ;^ and Adrian 
reminded his magistrates that it should be used for the in- 

' Const. 6 Cod. ix. xlvi. This provision of the L. Julia appears to have 
been revived by Diocletian. 

2 Lib. IX. Cod. Theod. i. 14. 

3 L. 16 I I, Dig. XLViii. xviii. (Modestin.) 

4 L. 10 Dig. XLVIII. xviii. (Arcad.) 

5 L. 3 Dig. XLVIII. xix. (Ulpian.) 

6 L. TO ^ 3, Dig. XLVIII. xviii. 

7 L, 22 Dig. XLVIII. xviii. 



388 TORTURE. 

vestigation of truth, and not for the infliction of punishment.^ 
Adrian further directed, in the same spirit, that the torture 
of slave witnesses should only be resorted to when the ac- 
cused was so nearly convicted that it alone was required to 
confirm his guilt. ^ Diocletian ordered that proceedings 
should never be commenced with torture, but that it might 
be employed when requisite to complete the proof, if other 
evidence afforded rational belief in the guilt of the accused.^ 
What was the exact value set upon evidence procured by 
torture it would be difficult at this day to determine. We 
have seen above that Augustus pronounced it the best form 
of proof, but other legislators and jurists thought differently. 
Modestinus affirms that it is only to be believed when there 
is no other mode of ascertaining the truth.* Adrian cautions 
his judges not to trust to the torture of a single slave, but to 
examine all cases by the light of reason and argument.^ Ac- 
cording to Ulpian, the imperial constitutions provided that 
it was not always to be received nor always rejected ; in his 
own opinion it was unsafe, dangerous, and deceptive, for some 
men were so resolute that they would bear the extremity of 
torment without yielding, while others were so timid that 
through fear they would at once inculpate the innocent.® 
From the manner in which Cicero alternately praises and 
discredits it, we can safely assume that lawyers were in the 
habit of treating it, not on any general principle, but accord- 
ing as it might affect their client in any particular case ; and 
Quintilian remarks that it was frequently objected to on the 
ground that under it one man's constancy makes falsehood 
easy to him, while another's weakness renders falsehood 

• L. 21 Dig. XLViii. xviii. 

2 L. I ^ I, Dig. XLVIII. xviii. (Ulpian.) 

3 Const. 8 Cod. ix. xli. (Dioclet et Maxim.) 

4 L. 7, Dig. XX. V. 5 L. I g 4, Dig. XLViii, xviii. (Ulpian ) 

6 L. I ^ 23, Dig XLViii. xviii. — Res est fragilis et periculosa et quae 
veritalem fallat. 



IN ROME. 389 

necessary.^ That these views were shared by the public 
would appear from the often quoted maxim of Publius Syrus 
— ''Etiam innocentes cogit mentiri dolor" — and from Vale- 
rius Maximus, who devotes his chapter '' De Qusestionibus" 
to three cases in which it was erroneously either trusted or 
distrusted. A slave of M. Agrius was accused of the murder 
of Alexander, a slave of C. Fannius. Agrius tortured him, 
and, on his confessing the crime, handed him over to Fan- 
nius, who put him to death. Shortly afterwards, the missing 
slave returned home. This same Alexander was made of 
sterner stuff, for when he was subsequently suspected of be- 
ing privy to the murder of C. Flavins, a Roman knight, he 
was tortured six times and persistently denied his guilt, though 
he subsequently confessed it and was duly crucified.^ A 
somewhat similar case gave ApoUonius of Tyana an oppor- 
tunity of displaying his supernatural power. Meeting in 
Alexandria twelve convicts on their way to execution as rob- 
bers, he pronounced one of them to be innocent, and asked 
the executioners to reserve him to the last, and, moreover, 
delayed them by his conversation. After eight had been 
beheaded, a messenger came in hot haste to announce that 
Phanion, the one selected by ApoUonius, was innocent, 
though he had accused himself to avoid the torture.^ A 
curious instance, moreover, of the little real weight attached 
to such evidence is furnished by the case of P\ilvius Flaccus, 
in which the whole question turned upon the evidence of his 
slave Philip. This man was actually tortured eight times, 
and refused through it all to criminate his master, who was 
nevertheless condemned.* The same conclusion is to be 
drawn from the story told by St. Jerome of a woman of 

' Altera saepe etiam causam falsa dicendi, quod aliis patientia facile 
mendacium faciat, aliis infirmitas necessanum, — M, F. Quintil. Inst. Orat. 
V. iv. 

2 Val. Maximi Lib. viii. c. iv. 

3 Philostrati vit. Apollon. vil. xxiv. 
* Valer. Maxim. Lib. viii. c. iv. 

33"^ 



390 TORTURE. 

Vercelli repeatedly tortured on an accusation of adultery, 
and finally condemned to death in spite of her constancy in 
asserting, her innocence, the only evidence against her being 
that of her presumed accomplice, extorted under torment.^ 
Quintus Curtius probably reflects the popular feeling on the 
subject, in his pathetic narrative of the torture of Philotas on 
a charge of conspiracy against Alexander. After enduring 
in silence the extremity of hideous torment, he promised to 
confess if it were stopped, and when the torturers were re- 
moved he addressed his brother-in-law Craterus, who was 
conducting the investigation : '' Tell me what you wish me 
to say." Curtius adds that no one knew whether or not to 
believe his final confession, for torture is as apt to bring forth 
lies as truth. ^ 

From the instances given by Valerius Maximus, it may be 
inferred that there was no limit set upon the application of 
torture. The extent to which it might be carried appears to 
have rested with the discretion of the tribunals, for, with the 
exception of the general injunctions of moderation alluded to 
above, no instructions for its administration are to be found 
in the Roman laws which have been preserved to us, unless 
it be the rule that when several persons were accused as ac- 
complices, the judges were directed to commence with the 
youngest and weakest.^ 

Since the time of Sigonius, much antiquarian research has 
been directed to investigating the various forms of torture 
employed by the Romans. They illustrate no principles, 
however, and it is sufficient to enumerate the rack, the scourge, 
fire in its various forms, and hooks for tearing the flesh, as 
the modes generally authorized by law. The Christian his- 
torians, in their narratives of the fearful persecutions to which 
their religion was exposed, give us a more extended idea of 

1 Hieron, Epist. i. ad Innocentvum. 

2 Q. Curt. Ruf. Hist, vi. xi. Anceps conjectura est quoniam et vera 
confessis et falsa dicentibus idem doloris finis ostenditur. 

3 Pauli Lib. v. Sentt. Tit, xiv. ^ 2. — L. i8 Dig. XLVlii, xviii. 



THE BARBARIANS. 39I 

the resources of the Roman torture chamber. Thus Pruden- 
tius, m his description of the martyrdom of St. Vincent, al- 
ludes to a number of varieties, among which we recognize 
some that became widely used in after times, showing that 
little was left for modern ingenuity to invent.^ 

I have dealt thus at length on the details of the Roman law 
of torture because, as will be seen hereafter, it was the basis 
of all modern legislation on the subject, and has left its im- 
press on the far less humane administration of criminal justice 
in Europe almost to our own day. Yet at first it seemed 
destined to disappear utterly from human sight with the 
downfall of the Roman power. 

THE BARBARIANS. 

In turning from the nicely poised and elaborate provisions 
of the Imperial laws to the crude jurisprudence of the Barba- 
rian hordes who gradually inherited the crumbling remains 
of the Empire of the West, we enter into social and political 
conditions so different that we are naturally led to expect a 
corresponding contrast in every detail of legislation. For 
the cringing suppliant of the audience chamber, abjectly 
prostrating himself before a monarch who combines in his 
own person every legislative and executive function, we have 
the freeman of the German forests, who sits in council with 
his chief, who frames the laws which both are bound to re- 
spect, and who pays to that chief only the amount of obedi- 
ence which superior vigor and intellect may be able to en- 
force. The structure of such a society is fairly illustrated by 
the incident which Gregory of Tours selects to prove the 
kingly qualities of Clovis. During his conquest of Gaul, and 
before his conversion, his wild followers pillaged the churches 
with little ceremony. A bishop, whose cathedral had suffered 
largely, sent to the king to request that a certain vase of im- 

1 Aurel. Prudent, de Vincent. Hymn. v. 



392 TORTURE. 

usual size and beauty might be restored to him. Clovis could 
only promise that if the messenger would accompany him to 
SoissonSj where the spoils were to be divided, and if the vase 
should chance to fall to his share, it should be restored. When 
the time came for allotting the plunder, he addressed his men, 
requesting as a special favor that the vase might be given to 
him before the division, but a sturdy soldier, brandishing his 
axe, dashed it against the coveted article., exclaiming, " Thou 
shalt take nothing but what the lot assigns to thee." For a 
year, Clovis dissembled his resentment at this rebuff, but at 
length, when opportunity offered, he was prompt to gratify 
it. While reviewing and inspecting his troops, he took oc- 
casion to bitterly reproach the uncourtly Frank with the con- 
dition of his weapons, which he pronounced unserviceable. 
The battle-axe excited his especial displeasure. He threw it 
angrily to the ground, and as the owner stooped to pick it 
up, Clovis drove his own into the soldier's head, with the 
remark, " It was thus you served the vase at Soissons."^ 

This personal independence of the freeman is one of the dis- 
tinguishing characteristics of all the primitive Teutonic insti- 
tutions. Corporal punishments for him were unknown to the 
laws. The principal resource for the repression of crime was 
by giving free scope to the vengeance of the injured party, 
and by providing fixed rates of composition by which he 
cculd be bought off. As the criminal could defend himself 
with the sword against the /ai'da or feud of his adversary, or 
could compound for his guilt with money, the suggestion of 
torturing him to extort a confession would seem an absurd 
violation of all his rights. Crimes were regarded solely as 
injuries to individuals, and the idea that society at large was 
interested in their discovery, punishment, and prevention, 
was entirely too abstract to have any influence on the legis- 
lation of so barbarous an age. 

Accordingly, the codes of the Feini, the Ripuarians, the 

' Greg. Turon. Hist. Franc. Lib. ii. c. xxvii. 



BARBARIAN TORTURE OF SLAVES. 393 

Alamanni, the Angli and Werini, the Frisians, the Saxons, 
and the Lombards contain no allusion to the employment of 
torture under any circumstances ; and such few directions 
for its use as occur in the laws of the Salien Franks, of the 
Burgundians, and of the Baioarians, do not conflict with the 
general principle. 

The personal inviolability which shielded the freeman cast 
no protection over the slave. He was merely a piece of pro- 
perty, and if he were suspected of a crime, the readiest and 
speediest way to convict him was naturally adopted. His 
denial could not be received as satisfactory, and the ma- 
chinery of sacramental purgation or the judicial duel was not 
for him. If he were charged with a theft at home, his master 
would undoubtedly tie him up and flog him until he con- 
fessed, and if the offence were committed against a third 
party, the same process would necessarily be adopted by the 
court. Barbarian logic could arrive at no other mode of 
discovering and repressing crime among the friendless and 
unprotected, whose position seemed to absolve them from 
all moral responsibility. 

The little that we know of the institutions of the ancient 
Gauls presents us with an illustration of the same principle 
developed in a somewhat different direction. Caesar states 
that, when a man of rank died, his relatives assembled and 
investigated the circumstances of his death. If suspicion 
alighted upon his wives, they were tortured like slaves, and 
if found guilty they were executed with all the refinements 
of torment.^ 

In accordance with this tendency of legislation, therefore, 
we find that among the Barbarians the legal regulations for 
the torture of slaves are intended to protect the interests of 
the owner alone. When a slave was accused of crime the 
master, indeed, could not refuse to hand him over to the 
torturer, unless he were willing to pay for him the full 

1 De Bell. Gall. vi. xix. 



394 TORTURE. 

wergild oi a freeman, and if the slave confessed under the 
torture, the master had no claim for compensation arising 
either from the punishment or crippling of his bondman.^ 
When, however, the slave could not be forced to confess and 
- was acquitted, the owner had a claim for damages, though 
no compensation was made to the unfortunate sufferer him- 
self. The original law of the Burgundians, promulgated in 
471, is the earliest of the Teutonic codes extant, and in that 
we find that the accuser who failed to extract a confession 
was obliged to give to the owner another slave, or to pay 
his value. ^ The Baioarian law is equally careful of the 
rights of ownership, but seems in addition to attach some 
criminality to the excess of torture by the further provision 
that, if the slave die under the torment without confession, 
the prosecutor shall pay to the owner two slaves of like 
value, and if unable to do so, that he shall himself be de- 
livered up as a slave. ^ The Salic law, on the other hand, 
only guards the interests of the owner by limiting the torture 
to 120 blows with a rod of the thickness of the little finger. 
If this does not extort a confession, and the accuser is still 
unsatisfied, he can deposit with the owner the value of the 
slave, and then proceed to torture him at his own risk and 
pleasure.* 

• These provisions are specified only in the Salic Law (First Text of 
Pardessus, Tit. XL. \\ 6, 7, 8, 9, 10.— L. Emend. Tit. XLii. ?i\ 8, 9, 10, 
II, 12, 13), but they were doubtless embodied in the practice of the other 
tribes. 

2 L. Burgund. Tit. vii. — The other allusions to torture in this code, 
Tit. XXXIX. W I, 2, and Tit. LXXVII. \\ i, 2, also refer only to slaves, 
coloni, and originarii. Persons suspected of being fugitive slaves were 
always tortured to ascertain the fact, which is in direct contradiction to the 
principles of the Roman law. 

3 L. Baioar. Tit. VIII. c. xviii. ^^ 1,2, 3. 

4 L. Salic. First Text, Tit. XL. H 1,2, 3, 4.— L. Emend. Tit. xlii. H 
I, 2, 3, 4, 5. — In a treaty between Childebert and Clotair, about the year 
593, there is, however, a clause which would appear to indicate that in 
doubtful cases slaves were subjected, not to torture, but to the ordeal of 



THE MEROVINGIANS. 395 

It will be observed that all these regulations provide 
merely for extracting confessions from accused slaves, and 
not testimony from witnesses. Indeed, the system of evi- 
dence adopted by all the Barbarian laws for freemen was of 
so different a character, that no thought seems to have been 
entertained of procuring proof by the torture of witnesses. 
The only allusion, indeed, to such a possibility shows how 
utterly repugnant it was to the Barbarian modes of thought. 
In some MSS. of the Salic law there occurs the incidental 
remark that when a slave accused is under the torture, if 
his confession implicates his master, the charge is not to be 
believed.^ 

Such was the primitive legislation of the Barbarians, but 
though in principle it was long retained, in practice it was 
speedily disregarded by those whom irresponsible power 
elevated above the law. The Roman populations of the 
conquered territories were universally allowed to live under 
their old institutions; in fact, law everywhere was personal 
and not territorial, every race and tribe, however intermin- 
gled on the same soil, being subjected to its own system of 
jurisprudence. The summary process of extracting con- 
fessions and testimony which the Roman practice thus daily 
brought under the notice of the Barbarians could not but be 
attractive to their violent and untutored passions. Their 
political system was too loose and undefined to maintain the 
freedom of the Sicambrian forests in the wealthy plains of 
Gaul, and the monarch, who, beyond the Rhine, had scarce 

chance. " Si servus in furto fuerit inculpatus, requiratur a domino ut ad 
viginti noctes ipsum in mallum prsesentet. Et si dubietas est, ad sortem 
ponatur." (Pact, pro Tenore Pacis cap. v. — Baluz.) This was probably 
only a temporary international regulation to prevent frontier quarrels and 
reprisals. That it had no permanent force of law is evident from the 
retention of the procedures of torture in all the texts of the Salic law, in- 
cluding the revision by Charlemagne. 

' First Text, Tit. XL. | 4.— MS. Monaster. Tit. XL. § 3.— L. Emend. 
Tit. XLIL I 6. 



396 TORTURE. 

been more than a military chief, speedily became a despot, 
whose power over those immediately around him was limited 
only by the fear of assassination, and over his more distant 
subjects by the facility of revolution. 

When all thus was violence, and the law of the strongest 
was scarcely tempered by written codes, it is easy to imagine 
that the personal inviolability of the freemen speedily ceased 
to guarantee protection. Even amid the wild tribes which 
remained free from the corruptions of civilization the idea of 
torturing for confession the friendless and unprotected was 
not unfamiliar, and in the Elder Edda we find King Geirrod 
using the torment of fire for eight days on Odin, who visits 
him in disguise for the purpose of testing his hospitality.^ 
Among the Gallic Franks, therefore, it need not surprise us 
to see irresponsible power readily grasping at such means to 
gratify hate or ambition. In the long and deadly struggle 
between Fredegonda and Brunhilda, for example, the fierce 
passions of the adversaries led them to employ without 
scruple the most cruel tortures in the endeavor to fathom 
each other's plots. ^ A single case may be worth recounting 
to show how completely torture had become a matter of 
course as the first resource in the investigation of doubtful 
questions. When Leudastes, about the year 580, desired to 
ruin the pious Bishop Gregory of Tours, he accused him to 
Chilperic I. of slandering the fair fame of Queen Frede- 
gonda, and suggested that full proof for condemnation could 
be had by torturing Plato and Gallienus, friends of the 
bishop. He evidently felt that nothing further was required 
to substantiate the charge, nor does Gregory himself, in 
narrating the affair, seem to think that there was anything 
irregular in the proposition. Gallienus and Plato were 

• Grimnismal, Thorpe's Saemnnd's Edda, I. 20. 

2 Greg. Turon. Hist. Franc. Lib. vii. c. xx. ; Lib. viii. cap. xxxi. 
Also, Lib. V. cap. xxxvii. — Aimoin. Lib. ill. c. xxx. xlii. li. Ixiv. Ixvii. — 
Flodoard. Hist. Remeiis. Lib. ii. c. ii. — Greg. Turon. Miraculorum Lib. 
I. cap. 73. 



THE GOTHS. 397 

seized, but from some cause were discharged unhurt. Then 
a certain Riculfus, an accomplice of Leudastes, was re- 
proached for his wickedness by a man named Modestus, 
whereupon he accused Modestus to Fredegonda, who 
promptly caused the unhappy wretch to be severely tortured 
without extracting any information from him, and he was 
imprisoned until released by the miraculous aid of St. Me- 
dard. Finally, Gregory cleared himself canonically of the 
imputation, and the tables were turned. Leudastes sought 
safety in flight. Riculfus was not so fortunate. Gregory 
begged his life, but could not save him from being tortured 
for confession. For six hours the wretched man was hung 
up with his hands tied behind his back, after which, stretched 
upon the rack, he was beaten with clubs, rods, and thongs, 
by as many as could get at him, until, as Gregory naively 
remarks, no piece of iron could have borne it. At last, 
when nearly dead, his resolution gave way, and he confessed 
the whole plot by which it had been proposed to get rid of 
Chilperic and Fredegonda, and to place Clovis on the 
throne.^ Now, Plato, Gallienus, and Modestus were prob- 
ably of Gallo-Roman origin, but Riculfus was evidently of 
Teutonic stock; moreover, he was a priest, and Plato an 
archdeacon, and the whole transaction shows that Roman 
law and Frankish law were of little avail against the unbri- 
dled passions of the Merovingian. 

THE GOTHS. 

Of all the Barbarian tribes, none showed themselves so 
amenable to the influences of Roman civilization as the 
Goths. Their comparatively settled habits, their early con- 
version to Christianity, and their position as allies of the 
empire long before they became its conquerors, rendered 
them far less savage under Alaric than were the Franks in 

' Gregor. Turon, Hist. Franc. Lib. V. c. xlix. 
34 



398 TORTURE. 

the time of Clovis. The permanent occupation of Septima- 
nia and Catalonia by the Wisigoths, also, took place at a 
period when Rome was not as yet utterly sunk, and when the 
power of her name still possessed something of its ancient 
influence, which could not but modify the institutions of the 
new-comers as they strove to adapt their primitive customs 
to the altered circumstances under which they found them- 
selves. It is not to be wondered at, therefore, if their laws 
reflect a condition of higher civilization than those of kindred 
races, and if the Roman jurisprudence has left in them traces 
of the appreciation of that wonderful work of the human 
intellect which the Goths were sufficiently enlightened to 
entertain. 

The Ostrogoths, allowing for the short duration of their 
nationality, were even more exposed to the influences of 
Rome. Their leader, Theodoric, had been educated in 
Constantmople, and was fully as much a Roman as many of 
the Barbarian soldiers who had risen to high station under 
the emperors, or even to the throne itself. All his efforts 
were directed to harmonizing the institutions of his diff"erent 
subjects, and he was too sagacious not to see the manifest 
superiority of the Roman polity. 

His kingdom was too evanescent to consolidate and perfect 
its institutions or to accumulate any extended body of juris- 
prudence. What little exists, however, manifests a compro- 
mise between the spirit of the Barbarian tribes of the period 
and that of the conquered mistress of the world. The Edict 
of Theodoric does not allude to the torture of freemen, and 
it is probable that the free Ostrogoth could not legally be 
subjected to it. With respect to slaves, its provisions seem 
mainly borrowed from the Roman law. No slave could be 
tortured against a third party for evidence unless the informer 
or accuser was prepared to indemnify the owner at his own 
valuation of the slave. No slave could be tortured against 
his master, but the purchase of a slave to render his testimony 
illegal was pronounced null and void ; the purchase money 



THE GOTHS. 399 

was returned, and the slave was tortured. The immunity of 
freedmen is likewise shown by the cancelling of any manu- 
mission conferred for the purpose of preventing torture for 
evidence.^ Theodoric, however, allowed his Roman sub- 
jects to be governed by their ancient laws, and he apparently 
had no repugnance to the use of torture when it could legally 
be inflicted. Thus he seems particularly anxious to ferret 
out and punish sorcerers, and in writing to the Prefect and 
Count of Rome he urges them to apprehend certain suspected 
parties, and try them by the regular legal process, which, as 
we have seen, by the edicts of Constantius and his successors, 
was particularly severe in enjoining torture in such cases, 
both as a means of investigation and of punishment.^ 

On the other hand, the Wisigoths founded a permanent 
state, and as they were the only race whose use of torture 
was uninterrupted from the period of their settlement until 
modern times, and as their legislation on the subject was to 
a great extent a model for that of other nations, it may be 
worth while to examine it somewhat closely. 

The earliest code of the Wisigoths is supposed to have 
been compiled by Eurik, in the middle of the fifth century, 
but it was subsequently much modified by recensions and 
additions. It was remoulded by Chindaswind and Recas- 
wind about the middle of the seventh century, and it has 
reached us only in this latest condition, while the MSS. vary 
so much in assigning the authorship of the various laws, that 
but little reliance can be placed upon the assumed dates of- 
most of them. Chindaswind, moreover, in issuing his re- 
vised code, prohibited for the future the use of the Roman 
law, which had previously been in force among the subject 
populations, under codes specially prepared for them by 
order of Alaric II. Thus the Wisigothic laws, as we have 
them, are not laws of race, like the other Barbarian codes, 

' Edict. Theodor. cap. c. ci. cii. 
2 Cassiodor. Variar. iv. xxii. xxiii. 



400 TORTURE. 

but territorial laws carefully digested for a whole nation by 
men conversant alike with the Roman and with their own 
ancestral jurisprudence. 

It is therefore not surprising to find in them the use of 
torture legalized somewhat after the fashion of the imperial 
constitutions, and yet with some humane modifications and 
restrictions. Slaves were liable to torture under accusation, 
but the accuser had first to make oath that he was actuated 
by neither fraud nor malice in preferring the charge ; and 
he was further obliged to give security that he would deliver 
to the owner another slave of equal value if the accused were 
acquitted. If an innocent slave were crippled in the torture, 
the accuser was bound to give two of like value to the owner, 
and the sufferer received his freedom. If the accused died 
under the torture, the judge who had manifested so little 
feeling and discretion in permitting it was also fined in a 
slave of like value, making three enuring to the owner, and 
careful measures were prescribed to insure that a proper 
valuation was made. If the accuser were unable to meet the 
responsibility thus incurred, he was himself forfeited as a 
slave. Moreover, the owner was always at liberty to save 
his slave from the torture by proving his innocence otherwise 
if possible; and if he succeeded, the accuser forfeited to him 
a slave of equal value, and was obliged to pay all the costs 
of the proceedings.^ 

Freedmen were even better protected. They could only 
be tortured for crimes of which the penalties exceeded a 
certain amount, varying with the nature of the freedom en- 
joyed by the accused. If no confession were extorted, and 
the accused were crippled in the torture, the judge and the 
accuser were both heavily fined for his benefit, and if he 
died, the fines were paid to his family.^ 

There could have been little torturing of slaves as wit- 

1 L. Wisigoth. Lib. vi. Tit. i. 1. 5. 

2 Ibid. 



THE WISIGOTHS. 40I 

nesses, for in general their evidence was not admissible, even 
under torture, against any freeman, including their masters. 
The slaves of the royal palace, however, could give testi- 
mony as though they were freemen,^ and, as in the Roman 
law, there were certain excepted crimes, such as treason, 
adultery, homicide, sorcery, and coining, in accusations of 
which slaves could be tortured against their masters, nor 
could they be preserved by manumission against this lia- 
bility.2 

As regards freemen, the provisions of different portions of 
the code do not seem precisely in harmony, but all of them 
throw considerable difficulties in the way of procedures by 
torture. An early law directs that, in cases of theft or fraud, 
no one shall be subjected to torture unless the accuser bring 
forward the informer, or inscribe himself with three sureties 
to undergo the lex talionis in case the accused prove inno- 
cent. Moreover, if no confession were extorted, the in- 
former was to be produced. If the accuser could not do 
this, he was bound to name him to the judge, who was then 
to seize him, unless he were protected by some one too 
powerful for the judicial authority to control. In this event 
it was the duty of the judge to summon the authorities to his 
aid, and in default of so doing he was liable for all the 
damages arising from the case. The informer, when thus 
brought within control of the court, was, if a freeman, de- 
clared infamous, and obliged to pay ninefold the value of 
the matter in dispute; if a slave, sixfold, and to receive a 
hundred lashes. If the freeman were too poor to pay the 
fine, he was adjudged as a slave in common to the accuser 
and the accused.^ 

A later law, issued by Chindaswind, is even more careful 
in its very curious provisions. No accuser could force to 
the torture a man higher in station or rank than himself. 

> L. Wisigoth, II. iv. 4. 

2 Ibid. VI. i. 4; VII. vi. I.; VIII. iv. lO, II. 

8 Ibid. VI. i. I. 

34* 



402 TORTURE. 

The only cases in which it was permitted for nobles were 
those of treason, homicide, and adultery, while for freemen 
of humbler position the crime must be rated at a fine of 500 
solidi at least. In these cases, an open trial was first pre- 
scribed. If this were fruitless, the accuser who desired to 
push the matter bound himself in case of failure to deliver 
himself up as a slave to the accused, who could maltreat him 
at pleasure, short of taking his life, or compound with him 
at his own valuation of his sufferings. The torture then 
might last for three days ; the accuser himself was the tor- 
turer, subject to the supervision of the judge, and might in- 
flict torment to any extent that his ingenuity could suggest, 
short of producing permanent injury or death. If death re- 
sulted, the accuser was delivered to the relatives of the de- 
ceased to be likewise put to death ; the judge who had per- 
mitted it through collusion or corruption was exposed to the 
same fate, but if he could swear that he had not been bribed 
by the accuser, he was allowed to escape with a fine of 500 
solidi. A very remarkable regulation, moreover, provided 
against false confessions extorted by torment. The accuser 
was obliged to draw up his accusation in all its details, and 
submit it secretly to the judge. Any confession under tor- 
ture which did not agree substantially with this was set aside, 
and neither convicted the accused nor released the accuser 
from the penalties to which he was liable.^ 

Under such a system, strictly enforced, few persons would 
be found hardy enough to incur the dangers of subjecting an 
adversary to the rack. As with the Franks, however, so 
among the Wisigoths, the laws were not powerful enough to 
secure their own observance. The authority of the kings 
grew gradually weaker and less able to repress the assump- 
tions of ambitious prelates and unruly grandees, and it is 
easy to imagine that in the continual struggle all parties 
sought to maintain and strengthen their position by an 

• L. Wisigoth. VI. i. 2. 



IN SPAIN. 403 

habitual disregard of law. At the Thirteenth Council of 
Toledo, in 68;^, King Erwig, in his opening address, alludes 
to the frequent abuse of torture in contravention of the law, 
and promises a reform. The council, in turn, deplores the 
constantly recurring cases of wrong and suffering wrought 
" regise subtilitatis astu vel profante potestatis instinctu," and 
proceeds to decree that in future no freeman, noble, or priest 
shall be tortured unless regularly accused or indicted, and 
properly tried in public ; and this decree duly received the 
royal confirmation.^ 

As the Goths emerge again into the light of history after 
the Saracenic conquest, we find these ancient laws still in 
force among the descendants of the refugees who had gath- 
ered around Don Pelayo. The use of the Latin tongue grad- 
ually faded out among them, and about the twelfth or thir- 
teenth century the Wisigothic code was translated into the 
popular language, and this Romance version, known as the 
Fuero Juzgo, long continued the source of law in the Penin- 
sula. In this, the provisions of the early Gothic monarchs 
respecting torture are textually preserved, with two trifling 
exceptions, which may reasonably be regarded as scarcely 
more than mere errors of copyists.^ Torture was thus main- 
tained in Spain as an unbroken ancestral custom, and when 
Alfonso the Wise, about the middle of the thirteenth cen- 
tury, attempted to revise the jurisprudence of his dominions, 
in the code known as Las Siete Partidas which he promul- 

1 Concil. Toletan. XIII. ann. 683, can. ii. 

2 See the Fuero Juzgo, Lib. i. Tit. iii. 1. 4; Tit. iv. I.4.— Lib. in. Tit. 
iv. 11. 10, II.— Lib. VI. Tit. i. 11. 2, 4, 5.-— Lib. vii. Tit. i. 1. i ; Tit. vi. 
1. I. The only points in which these vary from the ancient laws are that, 
in Lib. vi. Tit. i. 1. 2, adultery is not included among the crimes for sus- 
picion of which nobles can be tortured, and that the accuser is not directed 
to conduct the torture. In Lib. vii. Tit. i. 1. i, also, the informer who 
fails to convict is condemned only in a single fine, and not ninefold ; he 
is, however, as in the original, declared infamous, as a ladro ; if a slave, 
the penalty is the same as with the Wisigoths. 



404 TORTURE. 

gated, he only simplified and modified the proceedings, and 
did not remove the practice. Although he proclaimed that 
the person of man is the noblest thing of earth — ''La persona 
del home es la mas noble cosa del miindo"^ — he held that 
stripes and other torture inflicted judicially were no dishonor 
even to Spanish sensitiveness.^ Asserting that torture was 
frequently requisite for the discovery of hidden crimes,^ he 
found himself confronted by the church which taught, as we 
shall see hereafter, that confessions extorted under torture 
were invalid. To this doctrine he gave his full assent,* and 
then, to reconcile these apparently incompatible necessities, 
he adopted an expedient partially suggested not long before 
by Frederic II., which subsequently became almost universal 
throughout Europe, whereby the prohibition of conviction 
on extorted confessions was eluded. After confession under 
torture, the prisoner was remanded to his prison. On being 
subsequently brought before the judge, he was again inter- 
rogated, when, if he persisted in his confession, he was con- 
demned. If he recanted, he was again tortured ; and, if 
the crime was grave, the process could be repeated a third 
time : but, throughout all, he could not be convicted unless 
he made a free confession apart from the torture. Even 
after conviction, moreover, if the judge found reason to be- 
lieve that the confession was the result of fear of the torture, 
or of rage at being tortured, or of insanity, the prisoner was 
entitled to an acquittal.^ The humane interference of the 

1 Partidas, P. vii. Tit. i. 1. 26. 2 ibid. P. vii. Tit. ix. 1. 16. 

3 Ca por los tormentos saben los judgadores muchas veces la verdad de 
los malos fechos encubiertos, que non se podrian saber dotraguisa. — Ibid. 
P. VII. Tit. XXX. 1. I. 

4 Por premia de tormentos 6 de feridas, 6 por miedo de muerte 6 de 
deshonra que quieren facer a los homes, conoscen d las vegadas algunas 
cosas que de su grado non las conoscerien : e por ende decimos que la 
conoscencia que fuere fecha en alguna destas manei-as que non debe valer 
nin empesce al que la face. — Ibid. P. ill. Tit. xiii. 1. 5. 

5 Partidas, P. VII. Tit. xxx. 1. 4. — Porque la conoscencia que es fecha 
en el tormento, si non fuere confirmada despues sin premia, non es vale- 
dera. 



IN SPAIN. 405 

church thus resulted only in a redoublement of cruelty ; and 
the system once introduced speedily tended to break down 
the limits imposed on it. In little more than half a century 
after the death of Alfonso, judges were in the habit of not 
contenting themselves with three inflictions, but continued 
the torture as long as the prisoner confessed on the rack and 
retracted his confession subsequently.^ 

Alfonso's admiration of the Roman law led him to borrow 
much from it rather than from the Gothic code, though both 
are represented in the provisions which he established. Thus, 
except in accusations of treason, no one of noble blood could 
be tortured, nor a doctor of laws or other learning, nor a 
member of the king's council, or that of any city or town, 
except for official forgery, nor a pregnant woman, nor a 
child under fourteen years of age.""^ So, when several ac- 
complices were on trial, the torturer was directed to com- 
mence with the youngest and worst trained, as the truth 
might probably be more readily extracted from him.^ The 
provision, also, that when a master, or mistress, or one of 
their children was found dead at home, all the household 
slaves were liable to torture in the search for the murderer, 
bears a strong resemblance to the cruel law of the Romans, 
which condemned them to death in case the murderer re- 
mained undiscovered.* 

The regulations concerning the torture of slaves are 
founded, with little variation, on the Roman laws. Thus, 
the evidence of a slave was only admissible under torture, 

' Alvari Pelagii de Planctu Ecclesiae, Lib, ii. Art. xli. 

2 Partidas, P. vii. Tit. xxx. 1. 2. Except the favor shown to the learned 
professions, " por honra de la esciencia," which afterwards became general 
thrpughout Europe, these provisions may all be found in the Roman law. 
— Const. 4 Cod. IX. viii. ; L. 3, Dig. XLViii. xix. ; L. 10, Dig. XLViil. 
xviii. ; Const. 1 1 Cod. ix. xli. 

3 Partidas, P. vii. Tit. xxx. 1. 5. — Imitated from L. 18, Dig. XLVlii. 
xviii. 

4 Partidas, P. vii. Tit. xxx. 1. 7. Cf. Tacit. Annal. xiv. xliii.-xlv. 



4o6 TORTURE. 

and no slave could be tortured to prove the guilt of a pre- 
sent or former owner, nor could a freedman, in a case con- 
cerning his patron, subject to the usual exceptions which we 
have already seen. The excepted crimes enumerated by- 
Alfonso are seven, viz. : adultery, embezzlement of the royal 
revenues by tax collectors, high treason, murder of a husband 
or wife by the other, murder of a joint owner of a slave by 
his partner, murder of a testator by a legatee, and coining. 
With the slave, as with the freeman, all testimony under tor- 
ture required subsequent confirmation.^ 

There is one noteworthy innovation, however, in the Par- 
tidas, which was subsequently introduced widely into the 
torture codes of Europe, and which, in theory at least, 
greatly extended their sphere of action. This was the lia- 
bility of freemen as witnesses. When a man's evidence was 
vacillating and contradictory, so as to afford reasonable sus- 
picion that he was committing perjury, all criminal judges 
were empowered to subject him to torture, so as to ascertain 
the truth, provided always that he was of low condition, and 
did not belong to the excepted classes.^ 

With all this, there are indications that Alfonso designed 
rather to restrict than to extend the use of torture, and, if his 
general instructions could have been enforced, there must 
have been little occasion for its employment under his code. 
In one passage, he directs that when the evidence is insuffi- 
cient to prove a charge, the accused, if of good character, 
must be acquitted ; and in another, he orders its application 
only when common report is adverse to a prisoner, and he 
is shown to be a man of bad repute.^ Besides, an accuser 
who failed to prove his charge was always liable to the lex 
talionis, unless he were prosecuting for an offence committed 
on his own person, or for the murder of a relative not more 

1 Partidas, P. vii. Tit. xxx. 1. 1 6. 

2 Ibid. P. III. Tit. xvi. 1. 43. — P. vn. Tit. xxx. 1. 8. 

3 Ibid. P. VII. Tit. i. 1. 26, "Home mal enfamado."— P. vii. Tit. 
xxx. I. 3, " Et si fuere home de mala fame o vii." 



IN SPAIN. 407 

distant than a brother or sister's child. ^ The judge, more- 
over, was strictly enjoined not to exceed the strict rules ot 
the law, nor to carry the torture to a point imperilling life 
or limb. If he deviated from these limits, or acted through 
malice or favoritism, he was liable to a similar infliction on 
his own person, or to a penalty greater than if he were a 
private individual.'^ The liability of witnesses was further 
circumscribed by the fact that in cases involving corporal 
punishment, no one could be forced to bear testimony who 
was related to either of the parties as far as the fourth degree 
of consanguinity, in either the direct or collateral lines, nor 
even when nearly connected by marriage, as in the case of 
fathers-in-law, step-children, &c.^ Orders to inflict torture, 
moreover, were one of the few procedures which could be 
appealed from in advance.* Several of these limitations be- 
came generally adopted throughout Europe. We shall see, 
however, that they afforded little real protection to the ac- 
cused, and it is more than probable that they received as 
little respect in Spain as elsewhere. 

There were many varieties of torture in use at the period, 
but Alfonso informs us that only two were commonly em- 
ployed, the scourge and the strappado, or hanging the pris- 
oner by the arms while his back and legs were loaded with 
heavy weights.^ The former of these, however, seems to be 
the only one alluded to throughout the code. 

As a whole, the Partidas were too elaborate and too much 
in advance of the wants of the age to be successful as a work 
of legislation. With the death of Alfonso they became dis- 
credited, but still retained a certain amount of authority, and, 
a hundred years later, in the Ordenamiento di Alcala of Al- 

1 Partidas, P. vii. Tit. i. 1, 26. 

2 Ibid. p. VII. Tit. XXX. 1. 4; Tit. ix. 1. 16. 

3 Ibid. P. VII. Tit. XXX. 1. 9. 

4 Ibid. P. III. Tit. xxiii. 1. 13. 

5 Ibid. P. VII. Tit. XXX. 1. i. 



4o8 TORTURE. 

fonso XL, issued in 1348, they are referred to as supplying 
all omissions in subsequent codes. ^ 

It is probable that in his system of torture, Alfonso the 
Wise merely regulated and put into shape the customs preva- 
lent in his territories, for the changes in it which occurred 
during the succeeding three or four centuries are merely such 
as can be readily explained by the increasing influence of the 
revived Roman jurisprudence, and the introduction of the 
doctrines of the Inquisition with respect to criminal proced- 
ures. In the final shape which the administration of torture 
assumed in Spain, as described by Villadiego, an eminent 
legist writing about the year 1600, it was only employed 
when the proof was strong, and yet not sufficient for convic- 
tion. No allusion is made to the torture of witnesses, and 
Villadiego condemns the cruelty of some judges who divide 
the torture into three days in order to render it more effec- 
tive, since, after a certain prolongation of torment, the limbs 
begin to lose their sensibility, which is recovered after an 
interval, and on the second and third days they are more 
sensitive than at first. This he pronounces rather a repetition 
than a continuation of torture, and repetition was illegal un- 
less rendered necessary by the introduction of new testimony.^ 
As in the thirteenth century, nobles, doctors of laws, preg- 
nant women, and children under fourteen were not liable, 
except in cases of high treason and some other heinous of- 
fences. The clergy also were now exempted, unless pre- 
viously condemned as infamous, and advocates engaged in 
pleading enjoyed a similar privilege. With the growth of 
the Inquisition, however, heresy had now advanced to the 
dignity of a crime which extinguished all prerogatives, for it 

' Ordenamiento di Alcala, Tit. xxviii. 1. i. The Partidas are quoted 
as an authority on the subject of torture by Simancas, Bishop of Badajos, 
in the latter half of the sixteenth century. (De Cathol. Instit. Tit. LXV. 
No. 24, 37.) 

2 Simancas, however, states that a single repetition of the torture was 
allowable.— De Cathol. Instit. Tit. lxv. No. 76. 



IN SPAIN. 409 

was held to be a far more serious offence to be false to Divine 
than to human majesty.^ The Partidas allow torture in the 
investigation of comparatively trivial offences, but Villadiego 
states that it should be employed only in the case of serious 
crimes, entailing bodily punishment more severe than the 
torture itself, and torture was worse than the loss of the 
hands. Thus, when only banishment, fines, or imprison- 
ment were involved, it could not" be used. The penalties 
incurred by judges for its excessive or improper application 
were almost identical with those prescribed by Alfonso, and 
the limitation that it should not be allowed to endanger life 
or limb was only to be exceeded in the case of treason, when 
the utmost severity was permissible.^ In 1489 Ferdinand 
and Isabella had directed that no criminal case should be 
heard by less than three alcaldes or judges sitting together, 
and torture could not be employed without a formal decision 
signed unanimously by all three. In 1534 Charles V. called 
attention to the neglect of this rule, whereby the accused 
was deprived of the right of appeal, and he ordered that it 
should be strictly observed in future — regulations which duly 
maintained their place on the statute book as long as the use 
of torture was continued.^ 

Many varieties were in use, but the most common were the 
strappado and pouring water down the throat ; but when the 
accused was so weak as to render these dangerous, fire was 
applied to the soles of the feet ; and the use of the scourge 
was not unusual. As in the ancient laws, the owner of slaves 
was entitled to compensation when his bondmen were un- 
justly tortured. If there was no justification for it, he was 
reimbursed in double the estimated value; if the judge ex- 

' De Cathol. Instit. Tit, LXV. No. 44-48. Cf. Recopilacion, Lib. vi. 
Tit. ii. leis 4. y 5. (Ed. 1775). 

^ Villadiego, Gloss, ad Fuero Juzgo, Lib. vi. Tit, i. 1, 2, Gloss, c, d, e, 

3 Recopilacion, Lib. 11. Tit. vii, leis i y 13. 

35 



410 TORTURE. 

ceeded the proper measure of torment, he made It good to 
the owner with another slave. ^ 

Whatever limitations may theoretically have been assigned 
to the application of torture, however, it is probable that they 
received little respect in practice. Simancas, Bishop of Ba- 
dajos, who was a little anterior to Villadiego, speaks of it as 
a generally received axiom that scarcely any criminal accu- 
sation could be satisfactorily tried without torture.^ This is 
confirmed by the account recently discovered by Bergenroth 
of the secret history of the execution of Don Carlos, for whe- 
ther it be authentic or not, it shows how thoroughly the use 
of torture had interpenetrated the judicial system of Spain. 
It states that when Philip II. determined to tr)- his wretched 
son for the crime of encouraging the rebellious movements 
in the Netherlands, and the prince denied the offence, tor- 
ture was applied until he fainted, and, on recovering his 
senses, consented to confess in order to escape the repetition 
which was about to be applied. It is hardly to be believed 
that even a Spanish imagination could invent the dark and 
terrible details of this dismal story; and even if it be not 
true, its author must have felt that such an incident was too 
probable to destroy its vraisemblance. 

At the same time, Spanish justice kept itself free from one 
of the worst abuses which, as we shall see hereafter, grew 
out of the use of torture, in the secret inquisitorial process 
which established itself almost everywhere. A law of Al- 
phonso XI. issued in 1325 peremptorily ordered that the 
accused should not be denied the right to know the contents 
of the inquest made with respect to him, and that the names 
of the witnesses should be communicated to him so that he 
could defend himself freely and have all the means to which 
he was entitled of establishing his innocence. Ferdinand 
and Isabella, moreover, in 1480, decreed that all who de- 
sired counsel should be allowed the privilege, those who 

' Villadiego, op. cit. Lib. vi. Tit. i. 1. 5, Gloss, b, c. 
2 Simanca; de Calhol. Instit. Tit. LXV. No. 8. 



CARLOVINGIAN AND FEUDAL LAW, 4II 

were poor being furnished at the public expense, and no 
torture could be inflicted before this was complied with. 
These laws, which offer so creditable a contrast to the legis- 
lation of other lands, remained in force and were embodied 
in the Recopilacion.^ 

CARLOVINGIAN AND FEUDAL LAW. 

In turning to the other barbarian races which inherited the 
fragments of the Roman empire, we find that the introduction 
of torture as a recognized and legal mode of investigation 
was long delayed. Under the Merovingians, as we have 
seen, its employment, though not infrequent, was exceptional 
and without warrant of law. When the slow reconstruction 
of society at length began, the first faint trace of torture is to 
be found in a provision respecting the crimes of sorcery and 
magic. These were looked upon with peculiar detestation, 
as unpardonable offences against both God and man. It is 
no wonder then if the safeguards which the freeman enjoyed 
under the ordinary modes of judicial procedure were disre- 
garded in the case of those who violated every law, human 
and divine. The legislation of Charlemagne, indeed, was 
by no means merciful in its general character. His mission 
was to civilize, if possible, the savage and turbulent races 
composing his empire, and he was not overnice in the 
methods selected to accomplish the task. Still, he did not 
venture, even if he desired, to prescribe torture as a means 
of investigation, except in the case of suspected sorcerers, 
for whom, moreover, it is ordered indirectly rather than 
openly.^ Yet, by this time, the personal inviolability of the 

^ Recopilacion, Lib, II, Tit. vi. lei 6 ; Lib, vili. Tit. i. lei 4, Aragon 
is said to have been an exception as regards the use of torture (Gomez 
Var. Resolut. T. Ill, c. 13 — ap. Gerstlacher, de Quaest, per Torment, p. 
68). 

2 Capit, Carol. Mag. ii, ann, 805, \ xxv, (Baluz.). No other interpre- 
tation can well be given of the direction " diligentissime examinatione con- 
stringantur si forte confiteantur malorum quae gesserunt. Sed tali modera- 
tione fiat eadem districtio ne viiam perdant," 



412 TORTURE. 

freeman was gone. The infliction of stripes and of hideous 
mutilations is frequently directed in the Capitularies, and 
even torture and banishment for life are prescribed as a 
punishment for insulting bishops and priests in church.^ 

This apparent inconsistency is only a repetition of what 
we have seen in the Persian and Indian institutions, where 
torture was superfluous in the presence of other forms of 
proof, and in Greece and Rome where it makes its appear- 
ance in the absence of those forms. Though there was no 
theoretical objection to torture as a process of investigation, 
yet there was no necessity for its employment as a means of 
evidence. That the idea of thus using it in matters of great 
moment was not unfamiliar to the men of that age is evident 
when we find it officially stated that the accomplices of Ber- 
nard, King of Italy, in his rebellion against Louis-le-Debon- 
naire, in 817, on their capture confessed the whole plot with- 
out being put to the torture.^ Such instances, however, were 
purely exceptional. In ordinary matters, there was a com- 
plete system of attack and defence which supplemented all 
deficiencies of testimony in doubtful cases. Sacramental 
purgation, the wager of battle, and the various forms of vul- 
gar ordeals were not only primeval customs suited to the 
feelings and modes of thought of the race, but they were 
also much more in harmony with the credulous faith incul- 
cated by the church, and the church had by this time entered 
on the career of temporal supremacy which gave it so potent 
a voice in fashioning the institutions of European society. 
For all these, the ministrations of the ecclesiastic were requi- 
site, and in many of them his unseen agency might prove 
decisive. On the other hand, the humane precepts which 
forbade the churchman from intervening in any manner in 
judgments involving blood precluded his interference with 
the torture chamber; and in fact, while torture was yet fre- 

' Capitul. Lib. vi. cap. cxxix. 

2 Non solum se tradunt sed ultro etiam non admoti qiisestionibus omnem 
technam hujus rebellionis detegunt. — Goldast. Constit. Imp. I. 151. 



CARLOVINGIAN AND FEUDAL LAW. 413 

quent under the Merovingians, the canons of various councils 
prohibited the presence of any ecclesiastic in places where it 
was administered/ Every consideration, therefore, would 
lead the church in the ninth century to prefer the milder 
forms of investigation, and to use its all-powerful influence 
in maintaining the popular belief in them. The time had 
not yet come when, as we shall see hereafter, the church, as 
the spiritual head of feudal Christendom, would find the 
ordeal unnecessary and torture the most practicable instru- 
mentality to preserve the purity of faith and the steadfastness 
of implicit obedience. 

In the ninth century, moreover, torture was incompatible 
with the forms of judicial procedure handed down as relics 
of the time when every freeman bore his share in the public 
business of his sept. Criminal proceedings as yet were open 
and public. The secret inquisitions which afterwards became 
so favorite a system with lawyers did not then exist. The 
mallum, or court, was perhaps no longer held in the open 
air,"'^ nor were the freemen of the district constrained as of 
old to be present,^ but it was still free to every one. The 

' Non licet presbytero nee diacono ad trepalium ubi rei torquentur stare. 
— Concil. Autissiodor. ann. 578, can. xxxiii. 

Ad locum examinationis reorum nullus clericorum accedat.— Concil. 
IMatiscon. II. ann. 585, can. xix. 

2 Under Charlemagne and Loais-le-Debonnaire seems to have com- 
menced the usage of holding the court under shelter. Thus Charlemagne, 
" Ut in locis ubi mallus publicus haberi solet, tectum tale constituatur quod 
in hiberno et in gestate observandus esse possit." — (Capit. Carol. Mag. II. 
ann. 809, \ xiii.) See also Capit. I. eod. ann. \ xxv. Louis-le-Debon- 
naire prohibits the holding of courts in churches, and adds, " Volumus 
utique ut domus a comite in locum ubi mallum tenere debet construatur, 
ut propter calorem soils et pluviam publica utilitas non i-emaneat." — Capit. 
Ludov. Pii. I. ann. 819, \ xiv.) 

3 In 769, we find Charlemagne commanding the presence of all freemen 
in the general judicial assembly held twice a year, " Ut ad mallum venire 
nemo tardet, unum circa sestatem et alterum circa autumnum." At others 
of less importance, they were only bound to attend when summoned, "Ad 

35* 



414 TORTURE. 

accuser and his witnesses were confronted with the accused, 
and the criminal must be present when his sentence was pro- 
nounced.^ The purgatorial oath was administered at the altar 
of the parish church; the ordeal was Jt public spectacle; and 
the judicial duel drew thousands of witnesses as eager for the 
sight of blood as the Roman plebs. These were all ancestral 
customs, inspiring implicit reverence, and forming part of the 
public life of the community. To substitute for them the 
gloomy dungeon through whose walls no ech'o of the victim's 
screams could filter, where impassible judges coldly compared 
the incoherent confession wrung out by insufferable torment 
with the anonymous accusation or the depositions of secret wit- 
nesses, required a total change in the constitution of society. 
The change was long in coming. Feudalism arose and 
consolidated its forces on the ruins of the Carlovingian em- 
pire without altering the principles upon which the earlier 
procedures of criminal jurisdiction had been based. As the 
local dignitaries seized upon their fiefs and made them he- 
reditary, so they arrogated to themselves the dispensation of 
justice which had formerly belonged to the central power, 
but their courts were still open to all. Trials were conducted 
in public upon well-known rules of local law and custom; 
the fullest opportunities were given for the defence ; and a 
denial of justice authorized the vassal to renounce the juris- 
diction of his feudal lord and seek a superior court. ^ 

alia vero, si necessitas fuerit, vel denunciatio regis urgeat, vocatus venire 
nemo tardet." — (Capit. Carol. Mag. ann. 769, ^ xii.) 

In 809, he desired that none should be forced to attend unless he had 
business, ' Ut nullus ad placitum venire cogatur, nisi qui caussam habet 
ad qugerendam." — (Capit. I. ann. 809, § xiii.) 

In 819, Louis ordered that the freemen should attend at least three 
courts a year, "et nullus eos amplius placita observare conipellat, nisi forte 
quilibet aut accusatus fuerit, aut alium accusaverit, aut ad testimonium per- 
hibendum vocatus fuerit." — (Capit. Ludov, Pii. v. ann. 819, | xiv.) 

• Placuit ut adversus absentes non judicetur. Quod si factus fuerit pro- 
lata sententia non valebit. — Capitul. Lib, v. ^ cccxi, 

2 This right of appeal was not relished by the seigneurs, who apparently 
foresaw that it might eventually become the instrument of their destruction. 



FEUDALISM. 415 

Still, as under the Merovingians, torture, though unrecog- 
nized by law, was occasionally employed as an extraordinary 
element of judicial investigation, as well as a means of pun- 
ishment to gratify the vengeance of the irresponsible and 
cruel tyrants who ruled with absolute sway over their petty 
lordships. A few such instances occur in the documents and 
chronicles of the period, but the terms in which they are 
alluded to show that they were regarded as irregular. 

Thus, it .is related of Wenceslas, Duke of Bohemia, in the 
early part of the tenth century, that he destroyed the gib- 
bets and fearful elements of torture wherewith the cruelty of 
his judges had been exercised, .and that he never allowed 
them to be restored.^ An individual case of torture which 
occurred in 1017 has chanced to be preserved to us by its 
ending in a miracle, and being the occasion of the canoniza- 
tion of a saint. A pious pilgrim, reputed to belong to the 
royal blood of Scotland, while wandering on the marches 
between the Bavarians and the Moravians, was seized by the 
inhabitants on suspicion of being a spy, and, to extort a con- 
fession, was exposed to a succession of torments which ended 
in hanging him on a withered tree until he died. The falsity 
of the accusation and the sanctity of the victim were mani- 
fested by the uninterrupted growth of his hair and nails and 
the constant flowing of blood from a wound, while the dead 
tree suddenly put forth leaves and flowers. Margrave Henry 
of Bavaria had him reverently buried, and he was duly en- 
rolled in the catalogue of saints.^ A letter of Gerard, Bishop 
of Cambrai, in 1025, relating how certain suspected heretics 
could not be forced by torment to confession, shows that 

It was long in establishing itself, and was resisted energetically. Thus the 
Kings of England who were Dukes of Aquitaine, sometimes discouraged 
the appeals of their French subjects to the couits of the King of France by 
hanging the notaries who undertook to draw up the requisite papers. — 
Meyer, Instit. Judiciaires, I. 461. 

' Annalist. Saxo ann. 928. 

2 Dithmari Chron. Lib. vil. ad. fin. 



41 6 .TORTURE. 

ecclesiastics already were prepared, in spite of the received 
dogmas of the church, to have recourse to such means when 
no others could be found to protect the purity of the faith. ^ 
In the celebrated case, also, of the robbery of the church of 
Laon, about the year iioo, the suspected thief, after convic- 
tion by the cold water ordeal, was tortured by command of 
the bishop in order to make him surrender the sacred vessels 
which he had concealed. Basting with hot lard was tried 
unsuccessfully; he was then hanged by the neck and let 
down at intervals for nearly a whole day, and when life was 
almost extinct his resolution gave way and he agreed to dis- 
cover the place where the valuables were hidden. ^ When 
Richard I. of England was endeavoring to return through 
Germany from the crusade, it was by the torture of his page 
that the identity of the royal traveller was discovered, and 
he was delivered to his enemy the Duke of Austria.^ 

These are evidently rather sporadic and exceptional cases 
than indications of any systematic introduction of the prac- 
tice. A more significant allusion, however, is found in the 
reproof administered, about 1125, by Hildebert, Bishop of 
le Mans, to one of his priests, who had been concerned in 
the torture of a suspected thief, for the purpose of extracting 
a confession. Hildebert argues that the infliction of torture 
for confession is a matter for judicial decision and not of 
church discipline, and therefore not fit for a clerk to be 
engaged in.* This would seem to show that it occasionally 
was a recognized means of proof in the lay tribunals of the 
period, though as yet not favored by the church. If so, no 
record of its introduction or evidence of its customary use 
has been preserved to us, though there is abundant evidence 

' Multa dissimulatione renitebant, adeo ut nullis suppliciis possent cogi 
ad confessionem. — Synod. Atrebatens. ann. 1025 (Hartzheim III. 68). 

2 Hermannus de S. Mariae Lauden. Mirac. Cf. Guibert. Noviogent. 
de Vita Sua, cap. xvi. 

3 Radulf. de Coggeshale Chron. Anglic, ann. 1192. 
■^ Hildebert. Cenoman. Epist. xxx. 



TOETURE AS PUNISHMENT. 417 

of its employment as a punishment and for the extortion 
of money. 

As a punishment legally inflicted, we find it prescribed, in 
1 1 68, by Frederic Barbarossa in cases of petty thefts,^ and in 
the next century by Frederic II. as a penalty for high treason.^ 
Special cases, too, may be instanced, where its infliction on 
a large scale shows that the minds of men were not unfamiliar 
with its use. Thus when, in 1125, the inhabitants of Erfurt 
were guilty of some outrages on the imperial authority, and 
the town was besieged and captured by the Emperor Lothair, 
the chronicler relates that large numbers of the citizens were 
either killed, blinded, or tortured in various ways by the vin- 
dictive conqueror,^ and in 11 29 he treated the citizens of 
Halle in the same manner.* 

Even towards the close of the thirteenth century, we find 
Rodolph of Hapsburg interfering in favor of a prisoner whom 
one of his nobles was afflicting with cruel torments. The 
Emperor however does not venture to command but merely 
entreats that the tortures be suspended until he shall have an 
interview with the aggressor.^ 

So summary and eff'ective a mode of forcing the weak and 
unprotected to ransom themselves was not likely to be over- 
looked in those ages of violence, and though the extra-judi- 
cial use of torture is foreign to our purpose, yet, as showing 
how men educated themselves in its employment, it may be 
worth while to allude briefly to this aspect of the subject. 
Thus, Duke Swantopluck of Bohemia, in a marauding expe- 
dition into Hungary in 1108, caused to be racked or put to 
death all prisoners who could not purchase escape by heavy 
ransoms.^ At the same period, Germany is described to us 

1 Feudor. Lib. ii. Tit. xxvii. ^ 8. 

2 Fred. II. Lib. Rescript. II. |§ i, 6. (Goldast. Constit. Imp. II. 54.) 

3 Erphurdianus Variloquus ann. 1 125. 

4 Annal. Bosovienses, ann. 11 29. 

5 Cod. Epist. Rudolphi I, p. 216-7 (Lipsiae, 1806). 

6 Cosmse Pragens. Lib. iii. ann. 1108. 



4l8 TORTURE. 

by an eye-witness as covered with feudal chieftains who lived 
a life of luxury by torturing the miserable wretches that could 
scarce obtain bread and water for their own existence.-^ In 
Spain, the same means were understood and employed by 
the savage nobles of that barbarous period.^ In England, 
the fearful anarchy which prevailed under King Stephen 
encouraged a similar condition of affairs. The baronial 
castles which then multiplied so rapidly became mere dens 
of robbers who ransacked the country for all who had the 
unfortunate reputation of wealth. From these they extracted 
the last penny by tortures; and the chronicler expatiates on 
the multiplicity and horrid ingenuity of the torments devised 
■ — suspension by the feet over slow fires ; hanging by the 
thumbs ; knotted ropes twisted around the head ; crucet- 
houses, or chests filled with sharp stones, in which the victim 
was crushed ; sachentages, or frames with a sharp iron collar 
preventing the wearer from sitting, lying, or sleeping; dun- 
geons filled with toads and adders; slow starvation, &c. &c.^ 
Even in the more settled times of the close of the reign of 
Henry II. a case is recorded of a heavy fine inflicted on a 
man for illegally capturing and torturing a woman ;* under 
Richard I. an epistle of Clement III. refers to a knight who 
had confessed that he had tortured a priest and forced him 
to redeem himself with a large sum of money ;^ and in 1210 
King John seized all the Jews in England and tortured them 
until they ransomed themselves heavily.^ 

In all this, however, there is no evidence of the revival of 
torture as a means of legal investigation. The community 

J Aimalist. Saxo ann. 1123, See also, about the same date, the Chron- 
S. Trudon. Lib. xii, (D'Achery II. 704) ; and the Epist. Friderici Episc. 
Leodiens. in Martene, Ampliss. Collect. I. 654. 

2 Gerardi Hist. Compostellan. Lib. 11. cap. 80. 

3 Anglo-Saxon Chronicle, ann. 1137. 

4 Pike, History of Crime in England, I, 427. 

5 Jaffe Regesta p. 884. 

6 Matt. Paris. Hist. Angl. ann 1210. 



PROHIBITED BY THE CHURCH. 419 

was satisfied with the old barbaric forms of trial, and the 
church, still true to its humanizing instincts, lost no opportu- 
nity of placing the seal of its disapprobation on the whole 
theory of extorting confessions. At an early period, it had 
even been a matter of dispute whether a Christian magistrate, 
after baptism, was at liberty to inflict torment and pronounce 
sentence of death. The synod of Rome in 384 had declared 
that no Christian could exercise secular power without sin, 
because he was obliged to contravene the teachings of the 
church by ordering the application of torture in judicial 
pleadings;^ and if Innocent I., in 405, had decided that 
such proceedings were lawful, it was only on the ground 
that the church had no right to resist the laws or to oppose 
the powers ordained of God.^ About the same time St. 
Augustine had exposed the cruel absurdity of torture with a 
cogent terseness that has rarely been excelled, and had 
stamped it with the infamy which it deserved.^ The great 
name of Gregory I. was on record in the sixth century, de- 
nouncing as worthless a confession extorted by incarceration 
and hunger.* When Nicholas I., who did so much to build 
up ecclesiastical power and influence, addressed, in 866, his 
well-known epistle to the Bulgarians to aid and direct them 
in their conversion to orthodoxy, he recites that he is told 
that, in cases of suspected theft, their courts endeavor to 
extort confession by stripes, and by pricking with a pointed 
iron. This he pronounces to be contrary to all law, human 
and divine, for confessions to be valid should be spontaneous; 
and he argues at some length on the uncertainty of the sys- 
tem of torture, and the injustice to which it leads, concluding 
with a peremptory prohibition of its continuance.^ 

In the first half of the same century, the manufacturers of 

' Synod. Roman, ann. 384, can. 10. 

2 Innocent PP. I. Epist. in. cap. iii. 

3 De Civ. Dei Lib. xix, cap. vi. 

^ Gregor. PP. I. Lib. viii. Epist. xxx. 
5 Nicolai PP. I. Epist. xcvii. | 86. 



420 TORTURE. 

the False Decretals had attributed to Alexander I. an epistle 
designed to protect the church from pillage and oppression, 
in which that pontiff is made to threaten with infamy and 
excommunication those who extort confessions or other 
writings from ecclesiastics by force or fear, and to lay down 
the general rule that confessions must be voluntary and not 
compulsory.^ Oq the authority of this, Ivo of Chartres, at 
the commencement of the twelfth century, declares that men 
in holy orders cannot be forced to confess;'^ and half a cen- 
tury later, Gratian lays down the more general as well as 
more explicit rule that no confession is to be extorted by the 
instrumentality of torture.^ This position was consistently 
maintained until the revival of the Roman law familiarized 
the minds of men with the procedures of the imperial juris- 
prudence, when the policy of the church altered, and it 
yielded to the temptation of obtaining so useful a means of 
reaching and proving the otherwise impalpable crime of 
heresy. 

REAPPEARANCE OF TORTURE. 

The latter half of the twelfth century saw the study of the 
civil law prosecuted with intense ardor, and, in the beginning 
of the thirteenth, Innocent III. struck a fatal blow at the 
barbaric systems of the ordeal and sacramental compurgation 
by forbidding the rites of the church to the one and altering 
the form of oath customary to the other. The unreasoning 
faith which had reposed confidence in the boilmg caldron, 
or the burning ploughshare, or the trained champion as the 
special vehicle of Divine judgment, was fading before the 
Aristotelian logic of the schools, and dialectical skill could 

' Pseudo-Alexand. decret. "Omnibus orthodoxis." 

2 Ministrorum confessio non sit extorta sed spontanea. — Ivon. Panorm. 
IV, cxvii. 

3 Quod vero confessio cruciatibus extorquenda non est. — Decreti Caus. 
XV. q 6, can. I. 



REAPPEARANCE OF TORTURE. 42 I 

not but note the absurdity of acquitting a culprit because he 
could beg or buy two, or five, or eleven men to swear to 
their belief in his oath of denial. 

Yet with all these influences at work, the ancestral customs 
maintained their ground long and stubbornly. It is not 
until the latter half of the thirteenth century that the first 
faint traces of legalized torture are to be found in France, at 
whose University of Paris for more than a hundred years the 
study of the Pandects had become the absorbing topic, and 
where the constantly increasing power of the crown found its 
most valuable instruments in the civil lawyers, and its surest 
weapon against feudalism in the extension of the royal juris- 
diction. In Germany, the progress was even slower. The 
decline of the central authority, after the death of Frederic 
Barbarossa, rendered any general change impossible, and 
made the absolutist principles of the imperial jurisprudence 
especially distasteful to the crowd of feudal sovereigns, 
whose privileges were best supported by perpetuating organ- 
ized anarchy. The early codes, therefore, the Sachsen- 
spiegel, the Schwabenspiegel, the Kayser-Recht, and the 
Richstich Landrecht, which regulated the judicial proceed- 
ings of the Teutonic nations from the thirteenth to the 
fifteenth centuries, seem to know no other mode of deciding 
doubtful questions than sacramental purgation and the various 
forms of ordeal. During the latter portion of this period, it 
is true, torture begins to appear, but it is an innovation.^ 

1 Csesarius of Heisterbach, M^iting in 122 1, gives a story of an occur- 
rence happening in 11 84 which, if not embellished by some later tran- 
scriber, would seem to indicate that the judicial use of torture was known 
at an earlier period than is stated in the text. A young girl, in the disguise 
of a man, was despatched with letters to Lucius III. by the partisans of 
Wolmar in his struggle with Rudolph for the bishopric of Treves. Near 
Augsburg she was joined by a robber, who, hearing his pursuers approach- 
ing, gave her his bag to hold while he retired on some pretext to a thicket. 
Captured with the stolen property she was condemned, but she told her 
story to a priest in confession, the wood was surrounded and the robber 
captured. He was tortured until he confessed the crime. Then he 

36 



422 TORTURE. 

The first indications of the modern use of torture show- 
distinctly that its origin is derived from the civil law. In 
the Latin kingdoms of the East, the Teutonic races were 
brought into contact with the remains of the old civilization, 
impressive even in its decrepitude. It was natural that, in 
governing the motley collection of Greeks, Syrians, and 
Franks, for whom they had to legislate, they should adopt 
some of the institutions which they found in force amid their 
new possessions, and it is only surprising that torture did not 
form a more prominent feature in their code. The earliest 
extant text of the Assises de Jerusalem is not older than the 
thirteenth century, and the blundering and hesitating way in 
which it recognizes, in a single instance, the use of torture 
shows how novel was the idea of such procedure to the 
feudal barons, and how little they understood the principles 
governing its application. When a murderer was caught in 
the act by two witnesses, he could be promptly hanged on 
their testimony, if they were strangers to the victim. If, 
however, they were relatives, their testimony was held sus- 
pect, and the confession of the accused was requisite to his 
conviction. To obtain this, he was subjected to torture for 
three days; if he confessed, he was hanged; if obdurate, he 
was imprisoned for a year and a day, with the privilege of 
clearing himself during that period by the ordeal of the red- 
hot iron. If he declined this, and if during his confinement 
no additional evidence was procured, he was acquitted, and 
could not be again appealed for the murder.^ 

This shows tlie transition state of the question. The 
criminal is caught with the red hand and the evidence of 
guilt is complete, save that the witnesses may be interested ; 

retracted, and the question between the two was settled, at the suggestion 
of the priest, by the ordeal of hot iron, when the robber's hand was burnt, 
and the girl's uninjured. The tale is a long one, very romantic in its de- 
tails, and may very probably have been ornamented by successive scribes. 
— Caesar. Heisterb. Dial. Mirac. Dist. I. c. xl. 
1 Assises de Jerusalem, Baisse Court, cap. cclix. 



REVIVED IN ITALY. 423 

confession thus becomes requisite, yet tiie failure to extort it 
by prolonged torment does not clear the accused; the ordeal 
is resorted to in order to supplement the torture, and solve 
the doubts which the latter could not remove ; and finally, 
the criminal is absolved, though he dare not trust the judg- 
ment of God, and though the uncertainties in which torture 
had left the case are not removed. 

Italy was the centre from which radiated the influences of 
the Roman law throughout Western Europe, and, as might 
be expected, it is to Italy that we must look for the earliest 
incorporation of torture in the procedures of modern criminal 
jurisprudence. The Veronese laws in force in 1228 already 
show a mixture of proceedings suggestive, like the Assises de 
Jerusalem, of the impending change. In doubtful cases, the 
Podesta was empowered to ascertain the truth of testimony 
by either inquest, torture, or the duel.^ This shows that the 
employment of torture was by this time recognized to some 
extent, though as the code is a very full one and this is the 
only allusion to it, it evidently had not yet grown into one 
of the regular legal processes. So in the legislation of 
Frederic II. for his Neapolitan provinces, promulgated in 
1 231, the. mode in which it is prescribed shows that it was as 
yet but sparingly employed. As Frederic was one of the 
earliest secular legislators who discountenanced and restricted 
the various forms of the ordeal, it was natural that, with his 
education and temperament, he should seek to replace them 
with the system of the Roman codes which he so much 
admired. 

When a secret murder or other heinous crime was com- 
mitted, and the most stringent investigation could not convict 
the perpetrators, if the weight of suspicion fell on persons of 
humble station and little consequence, they could be tortured 
for confession. If no torment could wring from them an 
acknowledgment of guilt, or if, as often happened (''prout 

' Lib, Juris Civllis Veronce cap, 75 (p. 61). 



424 TORTURE. 

accidere novimiis in plerisque"), their resolution gave way 
under insufferable torment and they subsequently recanted, 
then the punishment, in the shape of a fine, was inflicted on 
the district where the crime had occurred.^ From this it is 
evident that torture was not exactly a novelty, but that as 
yet it was only ventured upon with the lowest and most un- 
protected class of society, and that confession during its 
infliction was not regarded as sufficient for conviction, unless 
subsequently persisted in. 

During the remainder of the century, the statutes of many 
of the Italian cities show the gradual introduction of torture 
to replace the barbarian processes which were not indige- 
nous,^ and which the traditional hate of the Italian States for 
the Tedeschi was not likely to render popular. That by the 
middle of the century, indeed, the practical applications of 
torture had been profoundly studied and were thoroughly 
understood in all their most inhuman ramifications is suffi- 
ciently evident from the accounts which we possess of the 
fearful cruelties habitually practised by petty despots such as 
Eccelino di Romano.^ 

The manner, in which the use of torture thus in time was 
superimposed upon the existing customs of "Europe is clearly 
shown in the law of Lubeck. The mercantile law of the 
Middle Ages disregarded, as we have seen, all the irregular 
forms of evidence, such as the ordeal, the judicial duel, &c., 
and it naturally was not favorable to torture. As the chief 
of the Hanse-tovvns Lubeck, therefore, in its legislation pre- 
served the principles of the mercantile law, but in time these 

J Constit. Sicular. Lib. i. Tit. xxvii. 

!2 Du Boys, Droit Ciiminel des Peiip, Mod. II. 405, 

3 Monach. Paduan. Chron. Lib. II. aim. 1252-3 (Urstisii Script. Rer. 
German, p. 594). — Quotidie diversis genevibus tormentorum indifferenter 
tarn majores quam minores a carnificibus necabuntur. Voces terribiles 
clamantum in tormentis die noctuque audiebantur de altis palatiis. . . . 
Quotidie sine labore, sine conscientiae remorsione magna torn enta et inex- 
ogitata corporibus hominum infiigebat, etc. 



INFLUENCE OF THE INQUISITION. 425 

came to be expounded by a race of lawyers imbued with the 
ideas of the imperial jurisprudence, and little was left of the 
primitive simplicity of the original code. Thus the latter, 
when treating of adultery, simply provides that the accused 
must clear himself by oath, or be held guilty of the charge ; 
but a commentary on it, written in 1664, assumes that as the 
crime is a peculiarly secret one recourse must be at once had 
to torture where there is colorable ground for suspicion.^ 

About this time we also find, in the increasing rigor and 
gradual systematizing of the Inquisition, an evidence of the 
growing disposition to resort to torture, and a powerful ele- 
ment in extending and facilitating its introduction. The 
church had been actively engaged in discountenancing and 
extirpating the ordeal, and it now threw the immense weight 
of its authority in favor of the new process of extorting con- 
fessions. When Frederic II., in 1221, published at Padua 
his three constitutions directed against heresy, cruel and un- 
sparing as they were, they contained no indication that tor- 
ture was even contemplated as a mode of investigation. In 
conformity with the provisions of the Lateran Council of 1215, 
parties suspected on insufficient evidence were directed to 
prove their innocence by some fitting mode of purgation, and 
the same instructions were given by Gregory IX. in 1235.^ In 
1252, however, when Innocent IV. issued his elaborate direc- 
tions for the guidance of the Inquisition in Tuscany and Lom- 
bardy, he ordered the civil magistrates to extort from all here- 
tics by torture not merely a confession of their own guilt, but 
an accusation of all who might be their accomplices j and this 
derives additional significance from his reference to similar 
proceedings as customary in trials of thieves and robbers.^ 

1 Mevii Comment, in Jus Lubecense, Lib. iv. Tit. vi. Art. 4 (Franco- 
furt. 1664). 

2 Concil Lateran. IV. can. iii. — Goldast. Constit. Imp. I. 293-5. — 
Harduin, Concil. VII. 164. See above, p. 81. 

3 Teneatur praeterea potestas seu rector pmneS hsei-eticos quos captos 
habuerit, cogere citra membri diminutionem et mortis periculum, tanquam 

36* 



426 TORTURE. 

It shows the progress made during the quarter of the century, 
and the high appreciation entertained by the church for the 
convenience of the new system. 

As yet, however, this did not extend beyond Italy. There 
is extant a tract, written not long after this time, containing 
very minute instructions as to the established mode of deal- 
ing with the Waldensian sectaries known as the ''Poor 
Men of Lyons." It gives directions to break down their 
strength and overcome their fortitude by solitary confine- 
ment, starvation, and terror, but it abstains from recom- 
mending the infliction of absolute and direct torture, while 
its details are so full that the omission is fair negative evi- 
dence that such measures were not then customary.^ 

The whole system of the Inquisition, however, was such 
as to render the resort to torture inevitable. Its proceedings 
were secret; the prisoner was carefully kept in ignorance of 
the exact charges against him, and of the evidence upon 
which they were based. He was presumed to be guilty, and 
his judges bent all their energies to force him to confess. 
To accomplish this, no means were too base or too cruel. 
According to the tract just quoted, pretended sympathizers 
were to be let into his dungeon, whose affected friendship 
might entrap him into an unwary admission ; officials armed 

vere latrones et homicidas animarum et fures sacramentorum Dei et fidei 
Christianae, errores suos expresse fateri et accusare alios haereticos quos 
sciunt, et bona eorum, et credentes et receptatores et defensores eoium, 
sicut coguntur fures et latrones rerum temporalium accusare suos complices 
et fateri maleficia quse fecerunt. — Innocent IV. Leg. et Const, contra 
Hseret. § 26. 

' Trac. de Hgeres. Paup. de Lugd. (Martene Thesaur. V. 1787). In 
the tract, Frederic II., who died in 1250, is spoken of as "quondam im- 
perator." 

I have, however, met with a letter of St. Dominic, dated April 7th, 
1217, which if genuine would show that the various kinds of torture, the 
rack, the pincers, the wheel, &c., were employed against the heretic Allji- 
genses as early as that date. — See the Fra Paolo Sarpi, Venezia, Ottob. 
27, 1869. 



INFLUENCE OF THE INQUISITION. 427 

with fictitious evidence were directed to frighten him with 
assertions of the testimony obtained against him from suppo- 
sititious witnesses; and no resources of fraud or guile were 
to be spared in overcoming the caution and resolution of the 
poor wretch whose mind, as we have seen, had been care- 
fully weakened by solitude, suifering, hunger, and terror. 
From this to the rack and estrapade the step was easily 
taken, and was not long delayed. In 130T, we find even 
Philippe-le-Bel protesting against the cruelty of Fulk, the 
Dominican Inquisitor, and interfering to protect his subjects 
from the refinements of torture to which, on simple suspicion 
of heresy, unfortunate victims were habitually exposed.^ Yet 
when, a few years later, the same monarch resolved upon 
the destruction of the Templars, he made the Inquisition the 
facile instrument to which he resorted, as a matter of course, 
to extort from De Motay and his knights, with endless repe- 
tition of torments, the confessions which were to recruit his 
exhausted treasury with their broad lands and accumulated 
riches.^ 

The history of the Inquisition, however, is too large a sub- 
ject to be treated here in detail, and it can only be alluded 
to for the purpose of indicating its influence upon secular 
law. That influence was immense. The legists who were 
endeavoring to eradicate the feudal customs could not expect 
the community to share their admiration of the Roman law, 
and naturally grasped with eagerness the advantage ofl'ered 
them in adducing the example of ecclesiastical institutions. 

• Clamor validus et insinuatio luctuosa fidelium subditorum . . . proces- 
sus suos in inquisitionis negotio a captionibus, quaestionibus et excogitatis 
tormentis incipiens personas quas pro libito asserit liseretica labe notatas, 
abnegasse Christum . . . . vi vel metu tormentorum fateri compellit. — Lit. 
Philip. Pulchri (Vaissette, Hist. Gen. de Languedoc, T. IV. Preuves 
p. 118). 

2 The fearful details of torture collected by Raynouard (Mon. Hist. rel. 
a la Condamnation des Chev. du Temple) show that the Inquisition by 
this time was fully experienced in such work. 



428 TORTURE. 

In founding their new system, they could thus hardly avoid 
copying that which presented itself under all the authority 
of an infallible church, and which had been found to work 
so successfully in unveiling the most secret of hidden crimes, 
those of faith and belief.^ When, therefore, men were 
taught that in these cases the ordinary forms and safeguards 
of the law were not to stand in the way of the public good, a 
principle was enunciated capable of illimitable development. 

About the time when Innocent IV. was prescribing torture 
in Italy, we find the first evidence of its authoritative use in 
France as an ordinary legal procedure. In December, 1254, 
an assembly of the nobles of the realm at Paris adopted an 
ordonnance regulating many points in the administration of 
justice. Among these occurs an order that persons of good 
reputation, even though poor, shall not be put to the torture 
on the evidence of one witness, lest, on the one hand, they 
may be forced to convict themselves falsely, or, on the other, 
to buy themselves off from the infliction.^ 

This would seem to indicate that the system of judicial 

• 1 Simancge de Christ. lustit. Tit. LXV. No. 19. — To the Inquisition is 
likewise attributable another of the monstrous iniquities of criminal justice 
— the denial to the accused of the assistance of counsel. Under the cus- 
tomary law of the feudal courts, the avocat or " avantparlier" was freely 
admitted, but such privilege was incompatible with the arbitrary process of 
which the sole object was to condemn for a crime scarce susceptible of 
proof. The decretal against heretics issued in 1235 by Gregory IX. for- 
bids all judges, advocates and notaries from helping the suspected heretic 
under pain of perpetual deprivation of function — " Item, judices, advocati, 
et notarii nulli eorum officium suum impendant; alioquin eodem officio 
perpetuo sint privati" (Harduin. Concil. VII. 164); and the same rule 
was enjoined "ne Inquisitionis negotium per advocatorum strepitum re- 
tardetur" by the Council of Valence (can, xi.) in 1248 and that of Alby 
(can. xxiii.) in 1254. (Harduin, VII, 426, 461.) 

2 Person as autem honestas vel bonae famse, etiam si sint pauperes, ad 
dictum testis unici, tormentis seu quaestionibus inhibemus, ne ob metum 
falsum confiteri, vel suam vexationem redimere compellantur. — Fontanon, 
Edicts et Ordonn. I, 701, A somewhat different reading is given by Isam- 
bert, Anciennes Lois Frangaises I. 270. 



INTRODUCED IN FRANCE. 429 

torture was so completely established that its evils and 
abuses had begun to render themselves apparent and to 
require restrictive legislation. Yet the contemporaneous 
remains of jurisprudence show no trace of the custom, and 
some of them are of a nature to render their silence a nega- 
tive proof of no little weight. To this period, for instance, 
belongs the earliest extant coutumier of Normandy, pub- 
lished by Ludewig, and it contains no allusion to torture. 
The same may be said of the For de Beam, granted in 1288, 
and recently printed by MM. Mazure and Hatoulet, which is 
very full in its details of judicial procedure. The collection 
of the laws of St. Louis, known as the Etahlissements, is like- 
wise free from any instructions or directions as to its applica- 
tion, though it could scarcely have been omitted, had it 
formed part of the admitted jurisprudence of the age. It 
may be argued, indeed, that these codes and laws assume 
the existence of torture, and therefore make no reference to 
it, but such an argument would not hold good with respect 
to the books of practice which shrewd and experienced 
lawyers commenced at that time to draw up for the guidance 
of courts in the unsettled period of conflict between the 
ancient feudal customs and the invading civil law. For in- 
instance, no text-book can well be more minute than the 
" Livres de Jostice et de Plet," written about the year 1260, 
by a lawyer of the school of Orleans, then celebrated as the 
headquarters of the study of the Imperial jurisprudence. He 
manifests upon almost every page his familiar acquaintance 
with the civil and canon law, and he could not possibly have 
avoided some reference to torture, if it had been even an 
occasional, resource in the tribunals in which he pleaded, 
and yet he does not in any way allude to it. 

The same conclusion is derivable from the '* Coutumes du 
Beauvoisis," written about 1270 by Philippe de Beaumanoir. 
In his position as royal bailli, Beaumanoir had obtained the 
fullest possible familiarity with all the practical secular juris- 
prudence of his day, and his tendencies were naturally in 



43© TORTURE. 

favor of the new system with which St. Louis was endeavor- 
ing to break down the feudal customs. Yet, while he details 
at much length every step in all the cases, civil and criminal, 
that could be brought into court, he makes no allusion to 
torture as a means of obtaining evidence. In one passage, 
it is true, he seems to indicate that a prisoner could be forced, 
while in prison, to criminate himself, bat the terms employed 
prove clearly that this was not intended to include the ad- 
ministration of torment.^ In another place, moreover, when 
treating of robberies, he directs that all suspected parties 
should be long and closely confined, but that, if they cannot 
be convicted by external evidence, they must at last be dis- 
charged.^ All this is clearly incompatible with the theory of 
torture. 

The ^'Conseil" of Pierre de Fontaines, which was pro- 
bably written about the year 1260, affords the same negative 
evidence in its full instructions for all the legal proceedings 
then in use. In these three works, notwithstanding the 
reforms attempted by St. Louis, the legist seems to imagine 
no other solution than the wager of battle for the settlement 
of doubtful cases, wherein testimony is insufficient. The 
form of trial is still public, in the feudal or royal courts, and 
every opportunity is given both for the attack and the defence. 
The work of de Fontaines, moreover, happens to furnish 

' Cil qui est pris et mis en prison, soit poi" meffet ou por dete,tant comme 
il est en prison il n'est tenus a respondre a riens c'on li demande fors es 
cas tant solement por quoi il fu pris. Et s'on li fet respondre autre coze contre 
se volente, et sor ce qu'il allige qu'il ne veut pas respondre tant comme il 
soit en prison ; tout ce qui est fait contre li est de nule valeur, car il pot 
tout rapeler quand il est hors de prison. — Beaumanoir, cap. Ln. § xix. 

2 Quant tel larrecin sunt fet, le justice doit penre toz les souspe9onneus 
et fere moult de demandes, por savoir s'il porra fere cler ce qui est orbe. 
Et bien les doit en longe prison tenir et destroite, et toz cex qu'il ara 
souspechonneus par malvese renommee. El s'il ne pot en nule maniere 
savoir le verity du fet, il les doit delivrer, se nus ne vient avant qui parti e 
se voille fere d'aus acuser droitement du larrecin.— Ibid. cap. xxxi. g vi. 



INTRODUCED IN FRANCE. 43I 

another proof that he wrote at the commencement of a tran- 
sition period, during which the use of torture was introduced. 
In the oldest MSS. of his work, which are considered to 
date from 1260 to 1280, there is a passage to the effect that 
a man convicted of crime may appeal, if he has not con- 
fessed, or, when he has confessed, if it has been in conse- 
quence of some understanding {covent). In later MSS., 
transcribed in the early part of the fourteenth century, the 
word "covent" is replaced by '' tourmenz,"^ thus showing 
not only the introduction of torture during the interval, but 
also that a conviction obtained by it was not final. 

The Ordonnance of 1254, indeed, as far as it relates to 
torture, is asserted by modern criticism to have been ap- 
plicable only to Languedoc.^ I do not know upon what 
facts this opinion is based, but it is observable that in the 
document as registered in the. council of Beziers in 1255, the 
section respecting torture is omitted,^ and this would seem 
to show that even in the south, where the traditions of the 
Roman law were continuous, torture was still regarded as an 
innovation not to be legally sanctioned. 

While giving due weight, however, to all this, we must 
not lose sight of the fact that the laws and regulations pre- 
scribed in royal ordonnances and legal text-books were 
practically applicable only to a portion of the population. 
All non-nobles, who had not succeeded in extorting special 
privileges by charter from their feudal superiors, were ex- 
posed to the caprices of barbarous and irresponsible power. 

' Si li hons n'est connoissans de son mesfet, ou s'il I'a coneu et ce a 
este par covent, s'en li fait jugement, apeler en puet. — Conseil, ch. xxii. 
art. 28. (Edition Marnier, Paris, 1846.) 

2 Tanon, Registre Criminel de la justice de S. Martin-des-Champs, In- 
trod. p, Ixxxvi. (Paris, 1877). — L'Oiseleur (Les Crimes et les Peines, 
Paris, 1863, p. 113) says that it was enacted for the baillages of Beauvais 
and Cahors, but we have seen from Beaumanoir that torture was not used 
in the Beauvoisis. 

3 Baluz. Concil, Gall. Narbon. p. 75. 



432 TORTURE. 

It was a maxim of feudal law that God alone could intervene 
between the lord and his villein — ^'Mes par notre usage 
n'a-il, entre toi et ton vilein, juge fors Deu"^ — the villein 
being by no means necessarily a serf; and another rule pro- 
hibited absolutely the villein from appealing from the judg- 
ment of his lord.^ Outside of law, and unauthorized by 
coutumiers and ordonnances, there must, under such insti- 
tutions, have been habitually vast numbers of cases in which 
the impatient temper of the lord would seek a solution of 
doubtful matters in the potent cogency of the rack or scourge, 
rather than waste time or dignity in endeavoring to cross- 
question the truth out of a quick-witted criminal. 

Still, as an admitted legal procedure, the introduction of 
torture was very gradual. The ''Olim," or register of cases 
decided by the Parlement of Paris, extends, with some inter- 
vals, from 1255 to 1 31 8, and the paucity of affairs recorded 
in which torture was used shows that it could not have been 
habitually resorted to during this period. The first instance, 
indeed, only occurs in 1283, when the Bishop of Amiens 
complains of the bailli of that town for having tried and tor- 
tured three clerks in defiance of the benefit of clergy which 
entitled them to exemption from secular jurisdiction. The 
bailli pleaded ignorance of their ecclesiastical character, and 
his plea was admitted as sufficient. ^ The next instance of 
the use of torture is found in 1299, when the royal bailli of 
Senlis cites the mayor and jurats of that town before the Par- 
lement, because in a case of theft they had applied the ques- 
tion to a suspected criminal ; and though theft was within 
their competence, the bailli argued that torture was an inci- 
dent of " haute justice" which the town did not possess. 
The decision was in favor of the municipality.* The next 

J Conseil ch. xxi. art. 8. 

^ Ibid. ai't. 14. Et encor ne puisse li vileins fausser le jugement son 
seignor, 

3 Actes du Parlement de Paris, I. 382 (Paris, 1863). 

4 Olim. T. II. p. 451. 



IN FRANCE. 433 

year (1300) we find a clerk, wearing habit and tonsure, 
complaining that the royal officials of the town of Villeneuve 
in Rouergue had tortured him in divers ways, with ropes and 
heavy weights, heated eggs and fire, so that he was crippled, 
and had been forced to expend three hundred livres Tour- 
nois in medicines and physicians. This, with other proper 
damages, he prays may be made good to him by the perpe- 
trators, and the arret of the Parlement orders their persons 
and property to be seized, and their possessions valued, in 
order that the amount may be properly assessed among them.^ 
Philippe-le-Bel, notwithstanding his mortal quarrel with the 
papacy — or perhaps in consequence of it — was ever careful 
of the rights and privileges of the clergy, among which the 
immunity from secular jurisdiction and consequently from 
torture was prominent. The case evidently turned upon that 
point. 

The fourth case does not present itself until 1306. Two 
Jews, under accusation of larceny by their brethren, complain 
that they had been illegally tortured by the bailli of Bourges, 
and though one of them under the infliction had confessed to 
complicity, the confession is retracted and damages of three 
thousand livres Tournois are demanded. On the other hand, 
the bailli maintains that his proceedings are legal, and asks 
to have the complainants punished in accordance with the 
confession. The Parlement adopts a middle course ; it ac- 
quits the Jews and awards no damages, showing that the 
torture was legal and a retracted confession valueless.^ 

The fifth case, which occurs in 1307, is interesting as 
having for its reporter no less a personage than Guillaume 
de Nogaret, the captor of Boniface VIII. A certain Guillot 
de Ferrieres, on a charge of robbery, had been tried by the 
judge of Villelongue and Nicolas Bourges, royal chatelain of 
Mont-Ogier. The latter had tortured him repeatedly and 
cruelly, so that he was permanently crippled, and his uncle, 

I Olim. III. 49-50. 2 Ibid. III. 185-6. 

37 



434 TORTURE. 

Etienne de Ferrieres, Chatelain of Montauban, claims dam- 
ages. The decision condemns Nicolas Bourges in a mulct 
of one thousand livres Tournois, half to Guiilot for his suffer- 
ings and half to Stephen for his expenses, besides a fine to 
the crown. ^ It is evident that judges were not allowed to 
inflict unlimited torment at their pleasure. 

The sixth case, occurring in 13 lo, may be passed over, as 
the torture was not judicial, but merely a brutal outrage by 
a knight on a noble damsel who resisted his importunities : 
though it may be mentioned that of the fine inflicted on him, 
fifteen hundred livres Tournois enured to the crown, and only 
one hundred to the victim.^ 

The seventh case took place in 131 2, when Michael de 
Poolay, accused of stealing a sum of money from Nicolas 
Loquetier, of Rouen, was subjected to long imprisonment 
and torture at Chateau-Neuf de Lincourt, and was then 
brought to the Chatelet at Paris, where he was again exa- 
mined without confession or conviction. Meanwhile, the 
real criminal confessed the theft, and Nicolas applies to 
the Parlement for the liberation of Michael, which is duly 
granted.^ 

A long interval then occurs, and we do not hear of torture 
again until 1318, when Guillaume Nivard, a money-changer 
of Paris, was accused of coining, and was tortured by the 
Prevot of the Chatelet. He contends that it was illegal, 
while the Prevot asserts that his jurisdiction empowered him 
to administer it. The Parlement investigates the case, and 
acquits the prisoner, but awards him no damages.* 

The essentially commonplace and trivial character of these 
cases has its interest in showing that the practice of appealing 
to the Parlement was not confined to weighty matters, and 
therefore that the few instances in which torture was involved 
in such appeals afford a fair index of the rarity of its use 

' Olim. III. 221-2. 2 Ibid. III. 505-6. 

3 Ibid. III. 751-2. ^ Ibid. III. 1299. 



RESISTANCE OF FEUDALISM. 435 

during this period. These cases, too, have seemed to me 
worth reciting, as they ilkistrate the principles upon which 
its application was based in the new jurisprudence, and the 
tentative and uncertain character of the progress by which 
the primitive customs of the European races were gradually 
becoming supplanted by the resuscitated Roman law. 

A few instances, moreover, are on record in which torture 
was used in affairs of state. Thus in 1304 we find Charles 
of Valois torturing a Flemish beguine who was accused of 
an attempt to poison him. The mode adopted was the ap- 
plication of fire to the soles of the victim's feet, and though 
she was said to have confessed, still he liberated her after a 
short imprisonment.^ In the frightful scandal, also, of the 
daughters-in-law of Philippe-le-Bel, which occurred in 1314, 
though torture does not seem to have been used in examining 
the principals, either the princesses or their paramours, it 
was freely employed upon the numerous persons who were 
accused as accessories.^ In 1315, during the long trial of 
Enguerrand de Marigny, sacrificed after the death of Philippe- 
le-Bel to the hatred of Charles of Valois, torture was freely 
used to obtain evidence from his dependents;^ and in the 
same year Raoul de Presles, accused of the death of the late 
king, was exposed to torture without obtaining a confession, 
and was finally liberated.* 

This undermining of the ancient customs had not been 
allowed to continue uninterrupted by protest and resistance. 
In the closing days of the reign of Philippe-le-Bel, the feudal 
powers of France awoke to the danger with which they were 
menaced by the extension of the royal prerogative during 
the preceding half-century. A league was formed, which 
seemed to threaten the existence of the institutions so care- 
fully nurtured by St. Louis and his successors. It was too 

1 Guill. de Nangis Continuat. ann. 1304. 

2 Ibid. ann. 13 14. ^ Ibid. ann. 13 15. 
* Grandes Chroniques, T. v. p. 221. (Ed, Paris, 1837.) 



436 TORTURE. 

late, however, and though the storm broke on the new and 
untried royalty of Louis Hutin, the crown lawyers were al- 
ready too powerful for the united seigneurie of the kingdom. 
When the various provinces presented their complaints and 
their demands for the restoration of the old order of things, 
they were met with a little skilful evasion, a few artful pro- 
mises, some concessions which were readily withdrawn, and 
negatives carefully couched in language which seemed to 
imply assent. 

Among the complaints, we find the introduction of torture 
enumerated as an innovation upon the established rights of 
the subject, but the lawyers who drew up the replies of the 
king took care to infringe as little as they could upon a sys- 
tem which their legal training led them to regard as an im- 
mense improvement in procedure, especially as it enabled 
them to supersede the wager of battle, which they justly re- 
garded as the most significant emblem of feudal independ- 
ence. 

The movement of the nobles resulted in obtaining from 
the king a series of charters for the several provinces, by 
which he defined, as vaguely, indeed, as he could, the extent 
of royal jurisdiction claimed, and in which he promised to 
relieve them from certain grievances. In some of these 
charters, as in those granted to Britanny, to Burgundy, and 
to Amiens and Vermandois, there is no allusion made to 
torture.^ In the two latter, the right to the wager of battle 
is conceded, which may explain why the nobles of those 
provinces were careless to protect themselves from a process 
which they could so easily avoid by an appeal to the sword. 
In the charter of Languedoc, all that Louis would consent 
to grant was a special exemption to those who had enjoyed 
the dignity of capitoul, consul, or decurion of Toulouse and 
to their children, and even this trifling concession did not 
hold good in cases of *Mese-majeste" or other matters par- 

' Isambert, Anciennes Lois Fran9aise.s, III. 131, 60, 65. 



RESISTANCE OF FEUDALISM. 437 

ticularly provided for by law: the whole clause, indeed, is 
borrowed from the Roman law, which may have reconciled 
Louis's legal advisers to it, more especially as, for the first 
time in French jurisprudence, it recognized the crime of lese- 
majesie, which marked the triumph of the civil over the feudal 
law.^ Normandy only obtained a vague promise that no 
freeman should be subjected to torture unless he were the 
object of violent presumptions in a capital offence, and that 
the torture should be so regulated as not to imperil life or 
limb j and though the Normans were dissatisfied with this 
charter, and succeeded in getting a second one some months 
later, they gained nothing on this point. ^ 

The official documents concerning Champagne have been 
preserved to us more in detail. The nobles of that province 
complained that the royal prevots and Serjeants entered upon 
their lands to arrest their men and private persons, whom 
they then tortured in defiance of their customs and privileges 
("contre leurs coustumes et libertez"). To this Louis pro- 
mised to put an end. The nobles further alleged that, in 
contravention of the ancient usages and customs of Cham- 
pagne ("centre les us et coustumes enciens de Champagne"), 
the royal officers presumed to torture nobles on suspicion of 
crime, even though not caught in the act, and without con- 
fession. To this Louis vaguely replied, that for the future 
no nobles should be tortured, except under such presump- 
tions as might render it proper, in law and reason, to prevent 
crime from remaining unpunished ; and that no one should 
be convicted unless confession were persevered in for a suffi- 
cient time after torture.^ This, of course, was anything but 
satisfactory, and the Champenois were not disposed to ac- 
cept it, but all that they could obtain after another remon- 
strance was a simple repetition of the promise that no nobles 

1 Ordonnance, ji^r Avril, 1315, art. xix. (Ibid. III. 58). 

2 Cart. Norman I. Mar. 1315, cap. xi. Cart. II. Jul. 1315, cap, xv 
(Ibid. 51, 109). 

3 Ordonn. Mai 1315, art. v. xiv. (Bouvdot de Richebonrg, III. 233-4) 

37* 



438 TORTURE. 

should be tortured except under capital accusations.^ The 
struggle apparently continued, for, in 1319, we find Philippe- 
le-Long, in a charter granted to Perigord and Quercy, pro- 
mising that the proceedings preliminary to torture should be 
had in the presence of both parties, doubtless to silence com- 
plaints as to the secret character which criminal investigations 
were assuming.^ 

The use of torture was thus permanently established in the 
judicial machinery of France, as one of the incidents in the 
great revolution which destroyed the feudal power. Even 
yet, however, it was not universal, especially where communes 
had the ability to preserve their franchises. Count Beugnot 
has published, as an appendix to the '' Olim," a collection 
known as the ''Tout Lieu de St. Disier," consisting of 314 
decisions of doubtful cases referred by the magistrates of St. 
Dizier to the city of Ypres for solution, as they were bound 
to do by their charter. This especially directed that all 
cases not therein provided for should be decided according 
to the customs of Ypres, and consequently, for two hundred 
and fifty years, whenever the echevins of the little town in 
Champagne felt in doubt they referred the matter to the 
lordly burghers of Flanders as to a court of last resort. In 
the " Tout Lieu" the cases date mostly from the middle third 
of the fourteenth century, and were selected as a series of 
established precedents. The fact that, throughout the whole 
series, torture is not alluded to in a single instance shows that 
it was a form of procedure unknown to the court of the 
eschevins of St. Dizier, and even to the superior jurisdiction 
of the bailli of their suzerain, the Seignieur of Dampierre. 
Many of these cases seem peculiarly adapted to the new in- 
quisitorial system. Thus, in 1335, a man was attacked and 
wounded in the street at night. A crowd collected at his 

' Ordonn. Mars 1315, art. ix, (Ibid. p. 235.) This ordonnance is in- 
correctly dated. It was issued towards the end of May, subsequently to 
the above. 

2 Ordonn. Jul. 1319, art. xxii, (Isambert, III. 227). 



THE COMMUNES. 439 

cries, and he named the assailant. No rule was more firmly 
established than the necessity of two impartial witnesses to 
justify condemnation, and the authorities of St. Dizier, not 
knowing what course to take, applied as usual for instructions 
to the magistrates of Ypres. The latter defined the law to be 
that the court should visit the wounded man on his sick-bed 
and adjure him by his salvation to tell the truth. If on this 
he named any one and subsequently died, the accused should 
be pronounced guilty; if, on the other hand, he recovered, 
then the accused should be treated according to his reputation ; 
that is, if of good fame, he should be acquitted ; if of evil re- 
pute, he should be banished.^ No case more inviting under the 
theory of torture could well be imagined, and yet neither the 
honest burghers of St. Dizier nor the powerful magnates of 
Ypres seem to have entertained the idea of its application. 
So, again, when the former inquire what proof is sufficient 
when a man accuses another of stealing, the answer is that 
no evidence will convict, unless the goods alleged to be stolen 
are found in the possession of the accused.^ The wealthy city 
of Lille equally rejected the process of torture. The laws 
in force there, about the year 1350, prescribe that in cases of 
homicide conviction ought to be based upon absolute evi- 
dence, but where this is unattainable, then the judges are 
allowed to decide on mere opinion and belief, for uncertain 
matters cannot be rendered certain.^ In such a scheme of 
legislation, the extortion of a confession as a condition pre- 
cedent to condemnation can evidently find no place. 

• Tout Lieu de Saint Disier, cap. cclxxii. (Olim, T. II. Append, p. 
856.) 

2 Ibid. cap. cclxxiii. 

3 Roisin, Franchises, Lois et Coutumes de Lille, p. 119. Thus, "on 
puet et doit demander de veir et de oir," but when this is impossible, " on 
doit et puet bien demander et enquerre de croire et cuidier. Et sour croire 
et sour cuidier avoec un veritet aparent de veir et d'oir, et avoec I'omechide 
aparant, on puet bien jugier, lone I'usage anchyen, car d'oscure fait oscure 
veritet." 



440 TORTURE. 

Attempts to introduce torture in Aquitaine were apparently 
made, but they seem to have been resisted. In the Coutu- 
mier of Bordeaux, during the fourteenth century there is a 
significant declaration that the sages of old did not wish to 
deprive men of their liberties and privileges. Torture, 
therefore, was prohibited in the case of all citizens except 
those of evil repute and declared to be infamous. The 
nearest approach to it that was permitted was tying the hands 
behind the back, without using pulleys to lift the accused 
from the ground.^ 

By this time, however, places where torture was not used 
were exceptional. An allusion to it in 1335 in the register 
of the court of the Priory of St. Martin-des- Champs shows 
that already it was no longer confined to the royal jurisdic- 
tion, but that it was recognized as an incident to the possession 
of haute justice.^ By a document of 1359, it appears that it 
was the custom to torture all malefactors brought to the 
Chatelet of Paris, ^ and though privileged persons constantly 
endeavored to exempt themselves from it, as the consuls of 
Villeneuve in 1371,* and the Seigneur d'Argenton in 1385,^ 
other privileged persons as constantly sought to obtain the 
power of inflicting it, as shown in the charter of Milhaud, 
granted in 1369, wherein the consuls of that town are honored 
with the special grace that no torture shall be administered 
except in their presence, if they desire to attend.^ At the 

1 Rabanis, Revue Hist, de Droit, 1861, p. 515. — No volgoren los savis 
antiquament qu'om pergossa sa franquessa ni sa libertat. 

2 Registre Criminel de la Justice de St. Marlin-des-Champs, p. 50. 

3 Du Cange s. v. Qua;stiotiarms. 

4 Letters granting exemption from torture to the consuls of Villeneuve 
for any crimes committed by them were issued in 137 1 (Isambert, V. 
352). These favors generally excepted the case of high treason. 

s He pleaded his rank as baron as an exemption from the torture, but 
was overruled. Dumoulin, however, admits that persons of noble blood 
are not to be as readily exposed to it as those of lower station. — Desmaze, 
Les Penalites Anciennes, d'apris des Textes inedits, p. 39 (Paris, 1866). 

6 Du Cange s. v. Qiurstio No. 3. 



THE CHATELET OF PARIS. 44I 

end of the century, indeed, the right to administer torture in 
cases wherein the accused denied the charge was regularly- 
established among the privileges of haute justiciers/ 

By this time criminal procedures were fully recognized as 
divisible into two classes — Xki^ pro ces ordinaire d^wA iliQ pro ces 
extraordinaire. The former of these was carried on by the 
form of inquest, the latter by inquisition, in which torture 
was habitually employed. There were no definite rules to 
determine the class to which any given case might be re- 
ferred, and though at the beginning of the fourteenth century 
the pi'oces ordinaire, as its name infers, v/as the usual mode 
of trying criminals, gradually the choice between the two 
was left to the discretion of the judge, and this discretion 
leaned so constantly in favor of the proces exti-aordinaire 
that by the close of the century it had become the rule rather 
than the exception.^ 

This is very clearly shown by the records of the Chatelet 
of Paris from 1389 to 1392,^ which enable us to form a tole- 
rably distinct idea of the part assigned to torture in the 
criminal procedure of this period. It had virtually become 
the rule and the main reliance of the tribunal, for the cases 
in which it was not employed appear to be simply exceptional. 
Noble blood afforded no exemption, for gentlemen were 
placed on the rack for petty crimes as freely as roturiers.^ 
No avenue of escape was open to the miserable culprit. If 
he denied the alleged offence, he was tortured at once for a 
confession, and no settled rules seem to have existed as to 
the amount of evidence requisite to justify it. Thus, in one 
case, a man on the *Uresteau" relating the misdeeds of his 

' Pour denier mettre a question et tourment, — Jean Desmarres, Decis- 
ions, Art. 295 (Du Boys, Droit Criminel II. 48). 

2 L. Tanon, Registre Criminel de la Justice de S. Martin-des-Champs, 
Introd. p. Ixxxv. (Paris, 1877). 

3 Registre Criminel du Cliatelet de Paris. Publie pour la premiere fois 
par la Societe des Bibliophiles Fran9ais. 2 torn. 8vo. Paris, 1864. 

4 Ibid. I. 9, 14. 



442 TORTURE. 

evil life chanced to mention the name of another as a profes- 
sional thief. The latter was immediately arrested, and though 
there was no specific crime charged against him, he was tor- 
tured repeatedly until sufficient confession was extracted 
from him to justify his execution.^ If, on the other hand, 
the prisoner persistently denied his guilt there was no limit 
to the repetition of the torture, and yet, even when no con- 
fession could be thus extracted, the failure did not always 
serve to exempt him from punishment.^ If he retracted the 
confession extorted from him, he was tortured again and 
again until he ceased to assert his innocence, for it was a 
positive necessity for conviction that the confession under 
torture should be confirmed by the prisoner without con- 
straint — '*sans aucune force, paour ou contrainte de ge- 
hayne" — when sentence came to be passed upon him outside 
of the torture-chamber. 

If, again, the luckless prisoner confessed the crime of which 
he stood accused, he was further promptly tortured to find 
out what other offences he might at some previous time have 
committed. This, which we will see hereafter, continued to 
be to the end one of the worst abuses of the torture system, 
was already a practice at least half a century old,^ and it had 

1 Ibid. I. 143, See also the similar case of Raoulin du Pre (p. 149) 
who recanted on the scaffold and protested his innocence " sur la mort 
qu'il attendoit a avoir et recevoir presentement," but who nevertheless was 
executed. Also that of Perrin du Quesnoy (p. 164). 

2 See the case of Berthaut Lestalon (Ibid. p. 501) accused of sundry 
petty thefts and tortured unsuccessfully. The court decided that in view 
of the little value of the articles stolen and of their having been recovered 
by the owners, the prisoner should be tortured again, when, if he con- 
fessed, he should be hanged, and if he still denied, he should have his 
right ear cropped and be banished from Paris. This logical verdict was 
carried out. No confession was obtained, and he was punished accord- 
ingly. Somewhat similar was the case of Jehan de Warlus (Ibid. p. 157), 
who was punished after being tortured five times without confession; also, 
that of Jaquet de Dun (Ibid. p. 494). 

3 In the Registre Criminel de St, Martin-des- Champs the cases are re- 
corded with too much conciseness to give details as to the process, only 



THE CHATELET OF PARIS. 443 

become so habitual that it is scarcely worth while to cite 
particular examples, though thecaseof Gervaise Caussois may 
be briefly referred to on account of its quaintness. Arrested 
for stealing some iron tools, he promptly confessed the crime. 
Among the reasons on record for proceeding to torture him 
in order to elicit an account of his other presumed misde- 
meanors, is included the excellent one, '' attendu qu'il est 
scabieux." Under the torment, the poor wretch accused 
himself of some other petty thefts, but even this did not 
satisfy his examiners, for the next day he was again brought 
before them and bound to the tresteau, when he confessed 
a few more trifling larcenies. Having apparently thus ob- 
tained enough evidence to satisfy their consciences, his 
judges mercifully hanged him without further infliction.^ In 
fact, the whole matter apparently was left very much to the 
discretion of the court, which seems to have been bound by 
no troublesome limitations to its curiosity in investigating the 
past career of the miserable beings brought before it. 

How that discretion was habitually exercised may be 
judged from the case of a certain Fleurant de Saint-Leu, who 
was brought up for examination, Jan. 4, 1390, on a charge 
of stealing a silver buckle. Denying the accusation, he was 
twice tortured with increasing severity, until he confessed 
the alleged crime, but asserted it to be a first offence. On 
Jan. 8th the court decided that as the petty theft was insuffi- 
cient to merit death, he should be tortured repeatedly to 
ascertain whether he had not been guilty of something else 

the charge and the sentence being stated. It frequently happens, how- 
ever, that a man convicted of some petty larceny is stated to have confessed 
more serious previous crimes, which necessarily implies their confession 
being extorted. See, for instance, the case of Jehannin Maci, arrested 
in 1338 for having in his possession two brass pots, the stealing of which 
he not only confessed but also "plusures murtres et larrecins avoir fais" 
for which he was duly drawn on a hurdle and hanged. (Op. cit. pp. 
1 20-1). The case of Phelipote de Monine (p. 178) is also suggestive. 
' Registre Criminel du Chatelet de Paris, I. 36. 



444 TORTURE. 

worthy of capital punishment. On that day he was therefore 
thrice exposed to the question, in an ascending scale of 
severity, but without success. Oi\ the 13th he was again 
twice tortured, when the only admission that rewarded the 
examiners was that three years before he had married a 
prostitute at Senlis. This uncommon obduracy seems to 
have staggered the court, for he was then kept in his dungeon 
until April 9th, when his case was carefully considered, and 
though nothing had been extorted from him since his first 
confession, he was condemned, and was hanged the same 
day — thus proving how purely gratuitous were the fearful 
sufferings to which he had been exposed in order to gratify 
the curiosity or satisfy the consciences of his remorseless 
judges.^ 

Few criminals, however, gave so much trouble as Fleu- 
rant. The "petit et grand tresteaux," on which the torture 
was customarily administered, were a sword which cut 
many a Gordian knot, and, by rendering the justice of the 
Chatelet sharp and speedy, saved the court a world of 
trouble. It was by no means unusual for the accused to be 
arraigned, tortured, condemned, and executed all on the 
same day,^ and not a few of the confessions read as though 
they were fictions composed by the accused in order to es- 
cape by death from the interminable suffering to which they 

' Ibid. I. 201-209. — Somewhat similar was the case of Marguerite de 
la Pinele (Ibid. p. 322), accused of stealing a ring, which she confessed 
under torture. As she did not, however, give a satisfactory account of 
some money found upon her, though her story was partially confirmed by 
other evidence, she was again twice tortured. This was apparently done 
to gratify the curiosity of her judges, for though no further confession was 
extracted from her, she was duly buried alive. 

Crimes for which a man was hanged or decapitated were punished in a 
woman by burying or burning. Jews were executed by being hanged by 
the heels between two large dogs suspended by the hind legs — a frightful 
death, the fear of which sometimes produced conversion and baptism on 
the gallows. (Ibid. II. 43.) 

2 Ibid. I. pp. I, 268, 289; II. 66, etc. 



THE CHATELET OF PARIS. 445 

were exposed. The sameness frequently visible in a long 
catalogue of crimes seems to indicate this, but it is especially- 
notable in some singular cases of parties accused of poisoning 
wells throughout the north of France, when there was an 
evident necessity for the authorities to satisfy the excited 
populace by procuring them some victims, and the unfortunate 
wretches who were arrested on suspicion were tortured until 
they were ready to accuse themselves of anything.^ In one 
case, indeed, the prisoner stated that he had known a person 
tortured at the Chatelet with such severity that he died in 
the hands of his torturers, and for himself he declared, after 
one or two inflictions, that he would confess whatever would 
relieve him from a repetition of what he had endured. '^ 

Yet, with all this reckless disregard of the plainest prin- 
ciples of justice, the torture process had not yet entirely 
obliterated the memory of the old customary law. The pris- 
oner was not, as we shall see practised hereafter, kept in 
ignorance of the charges against him and of the adverse testi- 
mony. The accusation was always made known to him, and 
when witnesses were examined, the record is careful to spe- 
cify that it was done in his presence.^ The court deliberated 
in private, but the prisoner was brought before it to receive 
condemnation either to torture or to death. Facilities were 
likewise afforded him to procure evidence in his favor, when 
the swift justice of the Chatelet might allow him leisure for 
such defence, for his friends were allowed to see him in 
prison during the intervals of his trial. '^ 

' Registre Criminel du Chatelet de Paris, I. 419-475. — ^The same result 
is evident in a very curious case in which an old sorceress and a young 
" fille de vie" were accused of bewitching a bride and groom, the latter of 
whom had been madly loved by the girl. The incantations confessed by 
her, after six tortures, on being threatened with the seventh, afford an 
instructive insight into the superstitions of the period. (Ibid. I. 327.) 

2 Ibid. I. 516. 

3 Ibid. I. 151, 163, 164, 173-77, 211, 269, 285, 306, 350, etc. 
^ See, for instance, the case of Pierre Fournet (Ibid. I. 516). 

38 



446 TORTURE. 

Thus, in the capital, the royal power aided by the civil 
lawyers, was fast encroaching upon all the liberties of the 
subject, but in the provinces a more stubborn resistance was 
maintained. It was some little time after the period under 
consideration that the ancient Coutumier of Britanny was 
compiled, and in it we find the use of torture, though fully 
established as a judicial expedient, yet subjected to much 
greater restrictions. A prisoner, accused of a capital crime 
and denying the charge, was liable to torture only if positive 
evidence was unattainable, and then only if he had been 
under accusation within the previous five years. Moreover, if 
he endured its application three times without confession, he 
was discharged acquitted as one in whose favor God would 
work a miracle' — thus showing how torture was assimilated 
in the popular mind to the ordeal which it had supplanted. 
Such escape indeed might well be regarded as a miracle, for 
the reckless barbarity of the age had little scruple in pushing 
the administration of the question to the utmost rigor. About 
this same time, the Council of Rheims, in 1408, drew up a 
series of instructions for the bishops of the province in visit- 
ing their dioceses ; and among the abuses enumerated for 
investigation was whether the judges were in the habit of 
torturing prisoners to death on feast days.^ It was not the 
cruelty, but the sacrilege to which the church took exception. 

Even in Germany, the citadel of feudalism, the progress 
of the new ideas and the influence of the Roman law had 
spread to such an extent that in the Golden Bull of Charles 
IV., in 1356, there is a provision allowing the torture of 
slaves to incriminate their masters in cases of sedition against 

1 Trfes Ancienne Cout. de Bretagne, cap. ci. (Bourdot de Richebourg 
IV. 224-5) — " Et s'il se peut passer sans faire confession en la gehenne, 
ou les jons, il se sauveroit, et il apparestroit bien que Dieu montreroit 
miracles pour luy." 

2 Concil. Remens. ann. 1408, cap. 49 (Martene Ampliss. Collect. VII. 
420). 



GERMANY — CORSICA. 447 

any prince of the empire ;^ and the form of expression em- 
ployed shows that this was an innovation. Liege, which at 
that period formed part of the Empire, furnishes us with a 
case in 1376 which shows not only that torture then was an 
habitual resource in procedure, but also that it was applied 
as illogically there as we have seen it in Paris. The young 
wife of a burgher riamed Gilles Surlet was found one morn- 
ing strangled in bed. The husband as though conscious of 
innocence, at once presented himself to the authorities assert- 
ing with fearful oaths his ignorance of the crime. A servant 
girl of the household was then arrested, and she, without 
torture, immediately confessed that she had committed the 
murder ; but the judges, not satisfied wnth this, submitted 
her to the question, when she denied her guilt with the most 
provoking constancy. Suspicion then grew against the hus- 
band, and he was duly tortured without extorting a confes- 
sion, though at the same time he declared that the girl was 
innocent; and on being taken back to his cell, he strangled 
himself during the night. The chronicler does not record 
what was the fate of the girl, but the body of Gilles was 
treated as that of a murderer — it was dragged to the place of 
execution and broken on the wheel, while the superstitious 
did not fail to note that on this dreary transit it was accom- 
panied by a black hog, which refused to be driven away 
until the gallows was reached.^ 

In Corsica, at the same period, we find the use of torture 
fully established, though subject to careful restrictions. In 
ordinary cases, it could only be employed by authority of 
the governor, to whom the judge desiring to use it trans- 
mitted all the facts of the case ; the governor then issued an 
order, at his pleasure, prescribing the mode and degree to 
which it might be applied.^ In cases of treason, however, 
these limitations were not observed, and the accused was 

' Bull. Aur. cap. xxiv. | 9 (Goldast. I. 365). 

2 Chron. Cornel. Zantfleit, ann, 1376 (Martene Ampl. Coll V. 308-9)^ 

3 Statut. Criminali cap. xiv. (Gregorj, Statuti di Corsica p. lOi). 



44^ TORTURE. 

liable to its infliction as far and as often as might be found 
requisite to effect a purpose.^ 

The peculiar character of Venetian civilization made tor- 
ture almost a necessity. The atmosphere of suspicion and 
secrecy which surrounded every movement of that republican 
despotism., the mystery in which it delighted to shroud itself, 
and the pitiless nature of its legislation conspired to render 
torture an indispensable resource. How freely it was admin- 
istered, especially in political affairs, is well illustrated in the 
statutes of the State Inquisition, where the merest suspicion 
is sufficient to authorize its application. Thus, if a senatorial 
secretary were observed to be more lavish in his expenditures 
than his salary would appear to justify, he was at once sus- 
pected of being in the pay of some foreign minister, and 
spies were ordered on his track. If he were then simply 
found to be absent from his house at undue hours, he was 
immediately to be seized and put to the torture. So, if any 
one of the innumerable secret spies employed by the inqui- 
sitors were insulted by being called a spy, the offender was 
arrested and tortured to ascertain how he had guessed the 
character of the emissary.^ Human life and human suffering 
were of little account in the eyes of the cold and subtle 
spirits who moulded the policy of the mistress of the Adriatic. 

The rude mountaineers of the Valtelline preserved to a 
later date their respect for the ancient guarantees of the law. 
In their statutes as revised in 1548 torture is indeed per- 
mitted, but only in case of persons accused of crimes involv- 
ing the penalty of blood. In accusations of less heinous 
offences and in matters concerning money, it was strictly 
forbidden ; and even in cases where it was allowed it could 
not be employed without the assent of the central authority 
of the territory. When proceedings were had by inquisition, 
moreover, all the evidence was submitted to the accused, 

' Statut. Criminali cap, Ix. (p. 163). 

2 Statuts de I'lnquisition d'Etat, i^ Supp. ^^ 20, 21 (Daru). 



HUNGARY — POLAND. 449 

and a sufficient delay was accorded to him in which to frame 
a defence before he could be ordered to the torture. Thus 
were avoided the worst abuses to which the system had been 
made subservient long before that time in all the surrounding 
regions.^ 

Other races adopted the new system with almost equal hesi- 
tation. Thus in Hungary the first formal embodiment of tor- 
ture in the law occurs in 15 14, and though the terms employed 
show that it had been previously used to some extent, yet the 
restrictions laid down manifest an extreme jealousy of its 
abuse. Mere suspicion was not sufficient. To justify its ap- 
plication, a degree of proof was requisite which was almost 
competent for condemnation, and the nature of this evidence 
is well exemplified in the direction that if a judge himself 
witnessed a murder, he could not order the homicide to be 
tortured unless there was other testimony sufficient, for he 
could not be both witness and judge, and his knowledge of 
the crime belonged to his private and not to his judicial ca- 
pacity.^ With such refinements, there would seem to be little 
danger of the extension of the custom. 

In Poland, torture does not make its appearance until the 
fifteenth century, and then it was introduced gradually, with 
strict instructions to the tribunals to use the most careful dis- 
cretion in its administration. ^ Until, at least, the seventeenth 
century, there remained in force laws of Casimir the Great 
promulgated in the fourteenth, prohibiting any prosecution 
not brought by a proper accuser, in whose presence alone 
could the matter be heard, thus showing that the inquisitorial 

' Li Statuti de Valtellina Riformati nella Cita di Coira nell' anno del 
S. IMDXLVIII. Stat. Crimin, cap. 8, 9, 10 (Poschiavo, 1549). 

2 Synod, Reg. ann. 15 14, Prooem. (Batthyani Legg. Eccles. Hung. I. 
574.) According to some authorities, this was a general rule — "Judex 
quamvis viderit committi delictum non tamen potest sine aliis probationibus 
reum torquere, ut per Specul. etc." — Jo. Emerici a Rosbach Process. Cri- 
minal. Tit. V. cap. V. No. 13 (Francof. 1645). 

3 Du Boys, Droit Criminel, I. 650. 

38* 



450 TORTURE. 

process found no foothold in the Poh'sh courts.^ In Russia, 
the first formal allusion to it is to be found in the Ulagenie 
Zakonof, a code promulgated in 1497, by Ivan III., which 
merely orders that persons accused of robbery, if of evil re- 
pute, may be tortured to supply deficiencies of evidence ; but 
as the duel was still freely allowed to the accused, the use of 
torture must have been merely incidental.''^ From another 
source, dating about 1530, we learn that it was customary to 
extort confessions from witches by pouring upon them from 
a height a small stream of cold water ; and in cases of con- 
tumacious and stubborn criminals, the finger-nails were 
wrenched off with little wooden wedges.^ Still, torture 



' Jo. Herb, de Fulstin. Statut. Reg. Polon. (Samoscii, 1597, p. 7.) 

2 Esneaux, Hist, de Russie, III. 236, 

2 Pauli Jovii Moschovia. — This is a brief account of Russia, compiled 
about the year 1530, by Paulus Jovius, from his conversations with Dmitri, 
ambassador to Clement VII, from Vasili V., first Emperor of Russia, Olaus 
Magnus, in the pride of his Northern blood, looks upon the statement in the 
text as a slander on the rugged Russ — " hoc scilicet pro terribili tormento 
in ea durissima gente reputari, quae flammis et eculeis adhibitis, vix, ut acta 
revelet, tantillulum commovetur" — and he broadly hints that the wily am- 
bassador amused himself by hoaxing the soft Italian : " Sed revera vel ludi- 
briose bonus praesul a versuto Muscovitici principis nuntio Demetrio dicto, 
tempore dementis VII. informatus est Romse." (Gent. Septent. Hist. 
Brev. Lib. xi, c. xxvi.) The worthy archbishop doubtless spoke of his 
own knowledge with respect to the use of the rack and fire in Russia, but 
the contempt he displays for the torture of a stream of water is ill-founded. 
In our prisons the punishment of the shower-bath is found to bring the most 
refractory characters to obedience in an incredibly short time, and its un- 
justifiable severity in a civilized age like this may be estimated from the 
fact that it has occasionally resulted in the death of the patient. Thus, at 
the New York State Prison at Auburn, in December, 1 858, a strong, healthy 
man, named Samuel Moore, was kept in the shower-bath from a half to 
three-quarters of an hour, and died almost immediately after being taken 
out. A less inhumane mode of administeiing the punishment is to wrap 
the patient in a blanket, lay him on his back, and, from a height of about 
six feet, pour upon his forehead a stream from an ordinary watering-pot 



THE INQUISITORIAL PROCESS. 45 1 

makes but little show in the subsequent codes, such as the 
Sudebtnick, issued in 1550, and the Sobornoie Ulagenie, 
promulgated in 1648.^ In fact, these regions were still too 
barbarous for so civilized a process. 

THE INQUISITORIAL PROCESS. 

During this period, while Central and Western Europe 
had advanced with such rapid strides of enlightenment, the 
inquisitorial process, based upon torture, had become the 
groundwork of all criminal procedure, and every detail was 
gradually elaborated with the most pains- taking perverse- 
ness. 

Allusion has already been made to the influence of the 
Inquisition in introducing the use of torture. Its influence 
did not cease there, for with torture there gradually arose 
the denial to the accused of all fair opportunity of defend- 
ing himself, accompanied by the system of secret procedure 
which formed so important a portion of the inquisitorial 
practice. In the old feudal courts, the prosecutor and the 
defendant appeared in person. Each produced his wit- 
nesses ; the case was argued on both sides, and unless the 
wager of battle or the ordeal intervened, a verdict was given 
in accordance with the law after duly weighing the evidence, 
while both parties were at liberty to employ counsel and to 
appeal to the suzerain. When St. Louis endeavored to abolish 

without the rose. According to experts, this will make the stoutest crimi- 
nal beg for his life in a few seconds. 

During the later period of our recent war, when the prevalence of ex- 
aggerated bounties for recruits led to an organized system of desertion, the 
magnitude of the evil seemed to justify the adoption of almost any means 
to arrest a practice which threatened to rapidly exhaust the resources of 
the country. Accordingly, the shower-bath was occasionally put into re- 
quisition by the military authorities to extort confession from suspected de- 
serters, when legal evidence was not attainable, and it was found exceed- 
ingly efficacious. 

1 Du Boys, op. cit. I. 618. 



452 TORTURE. 

the duel and to substitute a system of inquests, which were 
necessarily to some extent ex parte, he did not desire to 
withdraw from the accused the legitimate means of defence, 
and in the Ordonnance of 1254 he expressly instructs his 
officers not to imprison the defendant without absolute ne- 
cessity, while all the proceedings of the inquest are to be 
communicated freely to him.^ All this changed with time 
and the authoritative adoption of torture. The theory of the 
Inquisition, that, the suspected man was. to be hunted down 
and entrapped like a wild beast, that his guilt was to be as- 
sumed, and that the efforts of his judges were to be directed 
solely to obtaining against him sufficient evidence to warrant 
the extortion of a confession without allowing him the means 
of defence — this theory became the admitted basis of criminal 
jurisprudence. The secrecy of tliese inquisitorial proceedings, 
moreover, deprived the accused of one of the great safeguards 
accorded to him under the Roman law of torture. That law, 
as we have seen, required the formality of inscription, by which 
the accuser who failed to prove his charge was liable to the 
lex talionis, and in crimes which involved torture in the in- 
vestigation, he was duly tortured. This was imitated by the 
Wisigoths, and its principle was admitted and enforced by the 
Church before the introduction of the Inquisition had changed 
its policy ;^ but modern Europe, in borrowing from Rome the 
use of torture, combined it with the inquisitorial process, and 
thus in civilized Christendom it speedily came to be used 
more recklessly and cruelly than ever it had been in pagan 
antiquity. 

In 1498, an assembly of notables at Biois drew up an 
elaborate ordonnance for the reformation of justice in 
France. In this, the secrecy of the inquisitorial process is 
dwelt upon with peculiar insistence as of the first importance 

* Statut. S. Ludov. ann. 1254, ^^ 20, 21 (Isambert, I. 270). 

2 Thus Gratian, in the middle ot the twelfth century — " Qui cahimniam 
illatam non probat poenam debet incurrere quam si probasset i^eus utique 
sustineret." — Decreti P. II. caus. v. quaest. 6, c. 2. 



INJUSTICE TO THE ACCUSED. 453 

in all criminal cases. The whole investigation was in the 
hands of the government official, who examined every wit- 
ness by himself, and secretly, the prisoner having no know- 
ledge of what was done, and no opportunity of arranging a 
defence. After all the testimony procurable in this one-sided 
manner had been obtained, it was discussed by the judges, 
in council with other persons named for the purpose, who 
decided whether the accused should be tortured. He could 
be tortured but once, unless fresh evidence meanwhile was 
collected against him, and his confession was read over to 
him the next day, in order that he might affirm or deny it. 
A secret deliberation was then held by the same council, 
who decided as to his fate.-^ 

This cruel system was still further perfected by Francis L, 
who, in an ordonnance of 1539, expressly abolished the in- 
convenient privilege assured to the accused by St. Louis, 
which was apparently still occasionally claimed, and directed 
that in no case should he be informed of the accusation 
against him, or of the facts on which it was based, nor be 
heard in his defence. Upon examination of the ex parte 
testimony, without listening to the prisoner, the judges or- 
dered torture proportioned to the gravity of the accusation, 
and it was applied at once, unless the prisoner appealed, in 

J Ordonnance, Mars 1498, W 110-I16 (Isambert, XI. 365. — Fontanon, 
I. 710). It would seem that the only torture contemplated hy this ordon- 
nance was that of water, as the clerk is directed to record " la quantite de 
I'eau qu'on aura baillee audit prisonnier." This was administered by 
gagging the patient, and pouring water down his throat until he was 
enormously distended. It was sometimes diversified by making him eject 
the water violently, by forcible blows on the stomach (Fortescue de Lau- 
dibus Legg. Anglise, cap. xxii, ). Sometimes a piece of cloth was used to 
conduct the water down his throat. To this, allusion is made in the 
" Appel de Villon" : — 

" Se fusse des hoirs Hue Capel 
Qui fut extraict de boucherie. 
On ne m'eust, parmy ce drapel, 
Faict boyre a celle escorchene." 



454 TORTURE. 

which case his appeal was forthwith to be decided by the 
superior court of the locality.^ The whole process was ap- 
parently based upon the conviction that it was better that a 
hundred innocent persons should suffer than that one culprit 
should escape, and it would not be easy to devise a course 
of procedure better fitted to render the use of torture uni- 
versal. There was some protection indeed, theoretically at 
least, in the provision which held the judge responsible 
when an innocent prisoner was tortured without sufficient 
preliminary proof to justify it; but this salutary regulation, 
from the very nature of things, could not often be enforced, 
and it was so contrary to the general spirit of the age, that it 
soon became obsolete. Thus, in Brittany, perhaps the most 
independent of the French provinces, the Coutumier, as 
revised in 1539, retains such a provision,^ but it disappears 
in the revision of 1580. 

But even this was not all. Torture, as thus employed to 
convict the accused, became known as the question prepara- 
toirej and, in defiance of the old rule that it could be ap- 
plied but once, a second application, known as the question 
definitive or prealable, became customary, by which, after 
condemnation, the prisoner was again subjected to the 
extremity of torment in order to discover whether he had 
any accomplices, and, if so, to identify them. In this 
detestable practice we find another instance of the unfortu- 
nate influence of the Inquisition in modifying the Roman 
law. The latter expressly and wisely provided that no one 

' Ordonn. de VillersCotterets, Aout 1539, \\ 162-164 (Isambert, XIII. 
633-4). " Ostant et abolissant tous styles, usances ou coutumes par les- 
quels les accuses avoient accoutum^s d'etre oui's en jugement pour s9avoir 
s'ils devoient etre accuses, et k cette fin avoir communication des faits et 
articles concernant les crimes et delits dont ils ^toient accuses." 

2 Anc. Cout. de Bretagne, Tit. I. art. xli. — D'Argentr^'s labored com- 
mentary on this article is a lamentable exhibition of the utter confusion 
which existed as to the nature of preliminary proof justifyiiig torture. 
Comment, pp. 139, sqq. 



INJUSTICE TO THE ACCUSED. 455 

who had confessed should be examined as to the guilt of 
another;^ and in the ninth century the authors of the False 
Decretals had emphatically adopted the principle, which 
thus became embodied in ecclesiastical law,^ until the ardor 
of the Inquisition in hunting down heretics caused it to regard 
the conviction of the accused as a barren triumph unless he 
could be forced to incriminate his possible associates. 

Torture was also generically divided into the question o?-di- 
nairesind extraoi^dinaire — a rough classification to proportion 
the severity of the infliction to the gravity of the crime or the 
urgency of the case. Thus, in the most usual kind of tor- 
ment, the strappado, popularly known as the Maine de Caen^ 
the ordinary form was to tie the prisoner's hands behind his 
back with a piece of iron between them ; a cord was then 
fastened to his wrists by which, with the aid of a pulley, he 
was hoisted from the ground with a weight of one hundred 
and twenty-five pounds attached to his feet. In the extraor- 
dinary torture/ the weight was increased to two hundred and 
fifty pounds, and when the victim was raised to a sufficient 
height, he was dropped with a jerk that dislocated his joints, 
the operation being thrice repeated.^ 

Thus, in 1549, we see the system in full operation in the 
case of Jacques de Coucy, who, in 1544, had surrendered 
Boulogne to the English. This was deemed an act of 
treachery, but he was pardoned in 1547; yet, notwithstand- 
ing his pardon, he was subsequently tried, convicted, con- 
demned to decapitation and quartering, and also to the 

' Nemo igitur de proprio crimine confitentem super conscientia scrutetur 
aliena. — Const. 17 Cod. ix, ii. (Honor. 423 1. 

2 Nemini de se confesso credi potest super crimen alienum, quoniam 
ejus atque omnis rei professio periculosa est, et admit! i ad versus quemlibet 
non debet. — Pseudo-Julii Epist. ii. cap. xviii. — Gratian. Decret. P. II. 
caus. V. qusest. 3, can. 5. 

3 Cheruel, Diet. Hist, des Institutions, etc. de la France, p. 1220 (Paris, 
1855)- 



45^ TORTURE, 

question extraordinai?'e to obtain a denunciation of his 
accomplices.^ 

When Louis XIV., under the inspiration of Colbert, re- 
moulded the jurisprudence of France, various reforms were 
introduced into the criminal law, and changes both for better 
and worse were made in the administration of torture. The 
Ordonnance of 1670 was drawn up by a committee of the 
ablest and most enlightened jurists of the day, and it is a 
melancholy exhibition of human wisdom when regarded as 
the production of such men as Lamoignon, Talon, and Pus- 
sort. The cruel mockery of the question prtalable was 
retained; and in the principal proceedings all the chances 
were thrown against the prisoner. All preliminary testimony 
was still ex parte. The accused was heard, but he was still 
examined in secret. Lamoignon vainly endeavored to obtain 
for him the advantage of counsel, but Colbert obstinately 
refused this concession, and the utmost privilege allowed 
the defence was the permission accorded to the judge, at his 
discretion, to confront the accused with the adverse witnesses. 

' Isambert, XIV. 88. Beccaria comments on the absurdity of such pro- 
ceedings, as though a man who had accused himself would make any diffi- 
cuky in accusing others, — "Quasi che I'uomo che accusa se stesso, non 
accusi pill facilmente gli altri. E egli giusto il tormentare gli uomini per 
I'altrui delitto?" — Dei Delitte e delle Pene, \ Xii. A curious illustration 
of its useless cruelty when applied to prisoners of another stamp is afforded 
by the record of a trial which occurred at Rouen in 1647. A certain Jehan 
Lemarinier, condemned to death for murder, was subjected to the question 
definitive. Cords twisted around the fingers, scourging with rods, the 
strappado with fifty pounds attached to each foot, the thumb screw were 
applied in succession and together, without eliciting anything but fervent 
protestations of innocence. The officials at last wearied out remanded 
the convict to prison, when he sent for them and quietly detailed all the 
particulars of his crime, committed by himself alone, requesting especially 
that they should record his confession as having been spontaneous, for the 
relief of his conscience, and not extorted by torment. — Desmaze, Les 
Pcnaiites Anciennes, p. 159, Paris, 1 866. 



THE FRENCH SYSTEM. 457 

In the question preHf?iinatre, torture was reserved for capital 
cases, when the proof was strong and yet not enough for 
conviction. During its application it could be stopped and 
resumed at the pleasure of the judge, but if the accused 
were once unbound and removed from the rack, it could not 
be repeated, even though additional evidence were subse- 
quently obtained/ 

It was well to prescribe limitations, slender as these were, 
but in practice it v/as found impossible to enforce them, and 
they afforded little real protection to the accused, when 
judges, bent upon procuring conviction, chose to evade them. 
A contemporary whose judicial position gave him every 
opportunity of knowing the truth, remarks: "They have 
discovered a jugglery of words, and pretend that though it 
may not be permissible to repeat the torture, still they have 
a right to continue it, though there may have been an interval 
of three whole days. Then, if the sufferer, through good 
luck or by a miracle, survives this reduplication of agony, 
they have discovered the notable resource of nouveaux in- 
dices survenus, to subject him to it again without end. In 
this way they elude the intention of the law, which sets some 
bounds to these cruelties and requires the discharge of the 
accused who has endured the question without confession, or 
without confirming his confession after torture."^ Nor were 
these the only modes by which the scanty privileges allowed 
the prisoner were curtailed in practice. In 1681, a royal 
Declaration sets forth that, in the jurisdiction of Grenoble, 
judges were in the habit of refusing to listen to the accused, 
and of condemning him unheard, an abuse which was pro- 
hibited for the future. Yet other courts subsequently assumed 
that this prohibition was only applicable to the Parlement of 

' Ordonnance Criminel d'Aout 1670, Tit. xiv, xix. (Isambert, XIX. 
398,412). 

2 Nicolas, Dissertation Morale et Juridique sur la Torture, p. in. (Am 
sterd. 1682). 

39 



458 TORTURE. 

Grenoble, and in 1703 another Declaration was necessary to 
enforce the rule throughout the kingdom.-^ 

The Ordonnance of 1670, moreover, gave formal expres- 
sion to another abuse which was equally brutal and illogical 
— the employment of torture avec -reserve des preuves. When 
the judge resolved on this, the silence of the accused under 
torment did not acquit him, though the whole theory of the 
question lay in the necessity of confession. He simply 
escaped the death penalty, and could be condemned to any 
other punishment which the discretion of the judge might 
impose, thus presenting the anomaly of a man neither guilty 
nor innocent, relieved from the punishment assigned by the 
law to the crime for which he had been arraigned, and con- 
demned to some other penalty without having been convicted 
of any offence. This punishing for suspicion was no new 
thing. Before torture came fully into vogue, in the early 
part of the fourteenth century, a certain Estevenes li Bar- 
biers of Abbeville was banished under pain of death for 
suspicion of breach of the peace, and was subsequently tried, 
acquitted, and allowed to return.^ About the same period a 
barber of Anet and his sons were arrested by the monks of 
St. Martin-des-Champs on suspicion of killing a guard who 
was keeping watch over some hay. The evidence against 
them was insufficient, and they were taken to the gallows as 
a kind of moral torture not infrequently used in those days. 
Still refusing to confess, they were banished forever under 
pain of hanging, because, as the record ingenuously states, 
the crime was not fully proved against them."'^ So in the 
records of the Parlement of Paris there is a sentence rendered 
in 1402, against Jehan Dubos, a procureur of the Parlement, 
and Ysabelet his wife, for suspicion of the poisoning of 
another procureur, Jehan le Charron, the first husband of 

' Declaration du 13 Avril, 1703 (Ordonnances d'Alsace, I. 340). 

2 Coutumier de Picardie, Ed. Marnier, p. 88. 

3 Registre Criminel de la Justice de S. Martin-des-Champs. Paris, 1877, 
p. 229. 



CUMULATIVE INJUSTICE. 459 

Ysabelet, and Dubos was accordingly hanged, while his wife 
was burnt. ^ Jean Bodin, one of the clearest intellects of the 
sixteenth century, lays it down as a rule that the penalty 
should be proportioned to the proof; he ridicules as obsolete 
the principle that when the evidence is not sufficient for con- 
viction the accused should be discharged, and mentions 
stripes, fines, imprisonment, the galleys, and degradation as 
proper substitutes for death when there is no evidence and 
only violent presumption. He gives in illustration of this a 
case personally known to him of a noble of Le Mans, who 
was condemned to nine years of the galleys for violent sus- 
picion of murder.^ The application to the torture-process 
of this determination not to allow a man to escape unless his 
innocence was proved led to the illogical system of the 
reserve des preuves. 

The theory on which the doctors of the law proceeded 
was that if there were evidence sufficient for conviction and 
the judge yet tortured the criminal in surplusage without 
obtaining a confession, the accused could not be condemned 
to the full punishment of his offence, because the use of tor- 
ture in itself weakened the external proofs, and therefore the 
culprit must be sentenced to some lighter punishment — a 
refinement worthy of the inconsequential dialectics of the 
schools.^ The cruel absurdities which the system produced 
in practice are well illustrated by a case occurring in Naples 
in the sixteenth century. Marc Antonio Maresca of Sorrento 
was tried by the Admiralty Court for the murder of a peasant 
of Miani, in the market place. The evidence was strong 
against him, but there were no eye-witnesses, and he endured 
the torture without confession. The court asserted that it 
had reserved the evidence, and condemned him to the gal- 
leys for seven years. He appealed to the High Court of 

' Desmaze, Penalit^s Anciennes, p. 204. 

2 Bodini de Magor. Daemonoman. Basil. 1581, pp. 325, 334, 390. 

3 Scialojae Praxis torquendi Reos c. i. No. 12 (Neap. 1653). 



460 TORTURE. 

the royal council, and the case was referred to a distinguished 
jurisconsult, Thomaso Grammatico, a member of the council. 
The latter reported that he must be considered as innocent, 
after having passed through torture without confession, and 
denied the right of the court to reserve the evidence. Then, 
with an exhibition of the peculiar logic characteristic of the 
criminal jurisprudence of the time, he concluded that Maresca 
might be relegated to the islands for five years, although it 
was a recognized principle of Neapolitan law that torture 
could be inflicted only in accusations of crimes of which the 
penalty was greater than relegation. The only thing neces- 
sary to complete this tissue of legal wisdom was afforded by 
the council, which set aside the judgment of the Admiralty 
Court, rejected the report of their colleague, and condemned 
the prisoner to the galleys for three years. ^ Somewhat less 
complicated in its folly, but more inexcusable from its date, 
was the sentence of the court of Orleans in 1740, by which a 
man named Barberousse, from whom no confession had 
been extorted, was condemned to the galleys for life, because, 
as the sentence declared, he was strongly suspected of pre- 
meditated murder.^ A more pardonable, but not more 
reasonable example occurred at Halle in 1729, where a 
woman accused of infanticide refused to confess, and as she 
labored under a physical defect which rendered the applica- 
tion of torture dangerous to life, the authorities after due 
consideration and consultation of physicians, spared her the 
torture and banished her without conviction.^ 

The same tendency to elude all restrictions on the use of 
torture was manifested in the Netherlands, where the pro- 
cedure was scarcely known until the i6th century, and where 
it was only administered systematically by the ordonnance on 

1 Thomse Grammatici Decisiones Neapolitanoe, pp. 1275-6. (Venetiis 
1582.) Cf. Scialojoe op. cit. c. i. No. 22. 

2 L'Oiseleur, Les Crimes et les Peines, pp. 206-7. 

3 Braune Dissert, de Tortura Valetudinar. Halae Cattor. 1 740, p. 28. 



THE NETHERLANDS — GERMANY. 461 

criminal justice of Philip II. in 1570. When once employed 
it rapidly extended until it became almost universal, both in 
the provinces which threw off the yoke of Spain, and in 
those which remained faithful. The limits which Philip had 
imposed on it were soon transcended. He had forbid- 
den its employment in all cases '^oii il n'y a plaine, demye 
preuve, ou bien oil la preuve est certaine et indubitable," 
thus restricting it to those where there was very strong pre- 
sumption without absolute certainty. In transcription and 
translation, however, the wording of the ordonnance became 
changed to *^ plaine ou demye preuve, ou bien ou la preuve 
est incertaine ou douteuse,'' thus allowing it in all cases 
where the judge might not have a doubt not of the guilt but 
of the innocence of the accused; and by the time these 
errors were discovered by a zealous legal antiquarian, the 
customs of the tribunals had become so fixed that the attempt 
to reform them was vain.^ 

In Germany, torture had been reduced to a system, in 
1532, by the Emperor Charles V., whose ''Caroline Consti- 
tutions" contain a more complete code on the subject than 
had previously existed, except in the records of the Inquisi- 
tion. Inconsistent and illogical, it quotes Ulpian to prove 
the deceptive nature of the evidence thence derivable; it 
pronounces torture to be "res dira, corporibus hominum 
admodum noxia et quandoque lethalis, cui et mors ipsa 
prope proponenda;"^ in some of its provisions it manifests 
extreme care and tenderness to guard against abuses, and 
yet practically it is merciless to the last degree. Confession 
made during torture was not to be believed, nor could a 
conviction be based upon it ;^ yet what the accused might 
confess after being removed from torture w^as to be received 
as the deposition of a dying man, and was full evidence.* 

' Meyer, Institutions Judiciaires, IV. 285, 293. 

2 Legg, Capital. Caroli V. c. Ix., Iviii. 

3 Ibid. c. XX. * Ibid. c. Iviii. 

39* 



462 TORTURE. 

In practice, however, this only held good when adverse to 
the accused, for he was brought before his judge after an 
interval of a day or two, when, if he confirmed the confes- 
sion, he was condemned, while if he retracted it he was at 
once thrust again upon the rack. In confession under tor- 
ture, moreover, he was to be closely cross-questioned, and 
if any inconsistency was observable in his self-condemnation, 
the torture was at once to be redoubled in severity.^ The 
legislator thus makes the victim expiate the sins of his own 
vicious system; the victim's sufferings increase with the de- 
ficiency of the evidence against him, and the legislator con- 
soles himself with the remark that the victim has only himself 
to thank for it, " de se tantum non de alio quceratur." To 
complete the inconsistency of the code, it provided that 
confession was not requisite for conviction ; irrefragable 
external evidence was sufficient ; and yet even when such 
evidence was had, the judge was empowered to torture in 
mere surplusage.^ Yet there was a great show of tender 
consideration for the accused. When the weight of conflict- 
ing evidence inclined to the side of the prisoner, torture was 
not to be applied."'^ Two adverse witnesses, or one unex- 
ceptionable one, were a condition precedent, and the legis- 
lator shows that he was in advance of his age by ruling out 
all evidence resting on the assertions of magicians and sor- 
cerers.* To guard against abuse, the impossible effort was 
made to define strictly the exact quality and amount of evi- 
dence requisite to justify torture, and the most elaborate and 
minute directions were given with respect to all the various 
classes of crime, such as homicide, child -murder, robbery, 
theft, receiving stolen goods, poisoning, arson, treason, 
sorcery, and the like;^ while the judge administering torture 
to an innocent man on insufficient grounds was liable to 
make good all damage or suffering thereby inflicted.^ The 

' Legg. Capital. Carol. V. c. Iv., Ivi , Ivii. 2 Ibid. c. xxii , Ixix. 

3 Ibid. c. xxviii. * Ibid. c. xxiii., xxi. 

^ Ibid. c. xxxiii.-xliv. •> Ibid. c. xx., Ixi. 



FINAL SHAPE OF TORTURE SYSTEM. ' 463 

amount of torment, moreover, was to be proportioned to the 
age, sex, and strength of the patient; women during preg- 
nancy were never to be subjected to it ; and in no case was 
it to be carried to such a point as to cause permanent injury 
or death. ^ 

FINAL SHAPE OF THE TORTURE SYSTEM. 

Charles V. was too astute a ruler not to recognize the aid 
derivable from the doctrines of the Roman law in his scheme 
of restoring the preponderance of the Kaisership, and he lost 
no opportunity of engrafting them on the jurisprudence of 
Germany. In his Criminal Constitutions, however, he took 
care to embody largely the legislation of his predecessors 
and contemporaries, and though protests were uttered by 
many of the Teutonic princes, the code, adopted by the Diet 
of Ratisbon in 1532, became part and parcel of the common 
law of Germany.^ A fair idea of the shape assumed, under 
these influences, by the criminal law in its relations with 
torture, can be obtained by examining some of the legal 
text-books which were current as manuals of practice from 
the sixteenth to the eighteenth century.^ As the several au- 

' Legg. Capital. Carol. V. c. Iviii., lix. AccusaUis, si periculum sit, ne 
inter vel post tormenta ob vulnera expiret, ea arte torquendus est, ne quid 
damni accipiat. 

2 Heineccii Hist. Jur. Civ. Lib. II. ^^ cv. sqq. — Meyer (Instit. Judici- 
aires, Liv. vi, chap, xi.) gives a very interesting sketch of the causes which 
led to the overthrow of the old system of jurisprudence throughout Ger- 
many. He attributes it to the influence of the emperors and the munici- 
palities, each equally jealous of the authority of the feudal nobles, aided 
by the lawyers, now becoming a recognized profession. These latter of 
course favored a jurisprudence which required long and special training, 
thus conferring upon them as a class peculiar weight and influence. 

3 My principal authorities are four : — 

I. " Rerum Criminalium Praxis," by Josse Damhouder, a lawyer and 
statesman of repute in Flanders, where he held a distinguished position 
under Charles V, and Philip II. His work was received as an authority 
hroughout Europe for two centuries, having passed through numerous 



464 TORTURE. 

thors of these works all appear to condemn the principle or 
to lament the necessity of torture, their instructions 'as to its 
employment may safely be assumed to represent the most 
humane and enlightened views current during the period.^ 
It is easy to see from them, however, that though the pro- 
visions of the Caroline Constitutions were still mostly in 
force, yet the practice had greatly extended itself, and that 
the limitations prescribed for the protection of innocence 
and helplessness had become of little real effect. 

Upon the theory of the Roman law, nobles and the learned 
professions had claimed immunity from torture, and the Ro- 
man law inspired too sincere a respect to permit a denial of 
the claim, ^ yet the ingenuity of lawyers reduced the privilege 
to such narrow proportions that it was practically almost 

editions, from that of Louvain, in 1554, to that of Antwerp, in 1 750. My 
edition is of Antwerp, 1601. 

II. " Tractatus de Quaestionibus sen Torturis Reoriim," published in 
1592 by Johann Zanger, of Wittemberg, a celebrated jurisconsult of the 
time, and frequently reprinted. My edition is that of 1730, with notes by 
the learned Baron Senckenberg, and there is a still later one, published at 
Frankfort in 1763. 

III. '* Practica Criminalis, seu Processus Judiciarius ad usum et consue- 
tudinem judiciorum in Germania hoc tempore frequentiorem," by Johann 
Emerich von Rosbach, published in 1645 at Frankfort-on-the Mayn. 

IV. ' Tractatio Juridica, de Usu et Abusu Torturae," by Heinrich von 
Boden, a dissertation read at Halle in 1697, and reprinted by Senckenberg 
in 1730, in conjunction with the treatise of Zanger. 

' Cum nihil tam severum, tarn crudele et inhumanum videatur quam 
hominem conditum ad imaginem Dei . . . tormentis lacerare et quasi ex- 
carnificare, etc. — Zangeri fract. de Qusestion. cap. I. No. I. 

Tormentis humanitatis et religionis, necnon jurisconsultorum argumenta 
repugnant. — Jo. Emerici a Rosbach. Process. Criniin, Tit. v. c. ix. No. I. 

Saltem horrendus torturae abusus ostendit, quo miseri, de facinore aliquo 
suspecti, fere infernalibus, et si fieri possit, plusquam diabolicis cruciatibus 
exponuntur, ut qui nullo legitime probandi modo convinci poterant, atro- 
citate cruciatuum contra propriam salutem confiteri, seque ita destruere 
sive jure sive injuria, cogantur. — Henr. de Boden Tract. Praefat. 

2 Zangeri cap. I. Nos. 49-58. 



DISREGARD OF EXEMPTIONS. 465 

valueless. For certain crimes, of course, such as majestas^ 
adultery, and incest, the authority of the Roman law admitted 
of no exceptions, and to these were speedily added a number 
of other offences, classed as crimina excepta or nefanda, which 
were made to embrace almost all offences of a capital nature, 
in which alone torture was at any time allowable. Thus, 
parricide, uxoricide, fratricide, witchcraft, sorcery, counter- 
feiting, theft, sacrilege, rape, arson, repeated homicide, etc., 
came to be included in the exceptional cases, and the only 
privileges extended in them to nobles were that they should 
not be subjected to '■'• plebeian" tortures/ As early as 1514, 
I find an instance which shows how little advantage these 
prerogatives afforded in practice. A certain Dr. Bobenzan, 
a citizen of good repute and syndic of Erfurt, who both by 
position and profession belonged to the excepted class, when 
brought up for sentence on a charge of conspiring to betray 
the city, and warned that he could retract his confession, ex- 
tracted under torture, pathetically replied — '' During my ex- 
amination, I was at one time stretched upon the rack for six 
hours, and at another I was slowly burned for eight hours. 
If I retract, I shall be exposed to these torments again and 
again. I had rather die" — and he was duly hanged.^ 

In Catholic countries, of course, the clergy were specially 

1 Zangeri cap. I. Nos. 59-88. — Knipschild, in his voluminous "Tract, 
de Nobilitate" (Campodun. 1693), while endeavoring to exalt to the ut- 
most the privileges of the nobility, both of the sword and robe, is obliged 
to admit their liability to torture for these crimes, and only urges that the 
preliminary proof should be stronger than in the case of plebeians (Lib. II. 
cap. iv. No. 108-120) ; though, in other accusations, a judge subjecting a 
noble to torture should be put to death, and his attempt to commit such an 
outrage could be resisted by force of arms (Ibid. No. 103). He adds, 
however, that no special privileges existed in France, Lombardy, Venice, 
Italy, and Saxony (Ibid. Nos. 105-7). Scialoja expressly says (Praxis 
torquendi Reos c. xiii. No. 40-49, 55) that in Naples no dignity, secular 
or ecclesiastical, except that of judges, conferred immunity from torture ; 
and all privileges were set aside by a direct order from the sovereign. 

2 Erphurdianus Variloquus, ann. 15 14. 



466 TORTURE. 

favored, but the immunity claimed for them by the canon 
law was practically reduced to nearly the same as that ac- 
corded to nobles.^ The torture inflicted on them, however, 
was lighter than in the case of laymen, and proof of a much 
more decided character was required to justify their being 
exposed to torment. As an illustration of this von Rosbach 
remarks that if a layman is found in the house of a pretty 
woman, most authors consider the fact sufficient to justify 
torture on the charge of adultery, but that this is not the case 
with priests, who if they are caught embracing a woman are 
presumed to be merely blessing her.^ They moreover had 
the privilege of being tortured only at the hands of clerical 
executioners, if such were to be had.^ In Protestant terri- 
tories respect for the cloth was manifested by degrading them 
prior to administering the rack or strappado.* 

Slight as were the safeguards with which legislators en- 
deavored to surround the employment of torture, they became 
almost nugatory in practice under a system which, in the 
endeavor to reduce doubts into certainties, ended by leaving 
everything to the discretion of the judge. It is instructive to 
see the parade of insisting upon the necessity of strong pre- 
liminary evidence,^ and to read the elaborate details as to 
the exact kind and amount of testimony severally requisite 
in each description of crime, and then to find that common 
report was held sufficient to justify torture, or unexplained 
absence before accusation, prevarication under examination, 
and even silence ; and it is significant of fearful cruelty when 
we see judges solemnly warned that an evil countenance, 

1 Damhouder. Rer. Crimin. Praxis cap, xxxvii. Nos. 23, 24. Cf. 
Passerini Regul are Tribunal Qusest. xv. Art. ix. No, 117. 

2 Emer. a Rosbach Process, Crimin, Tit. v, cap. xiv. 

3 Simancae de Cathol, Instit. Tit. LXV, No, 50. 

4 Willenbergii Tract, de Excess, et Poenis Cleric. 4to. Jense, 1740, p. 41. 

5 Even this, however, was not deemed necessary in cases of conspiracy 
and treason " qui fiunt secreto, propter probationis difficultatem devenitur 
ad torturam sine indiciis." (Emer. a Rosb. Tit. v. cap. x. No. 20.) 



EMPLOYED AT DISCRETION. 467 

though it may argue depravity in general, does not warrant 
the presumption of actual guilt in individual cases ;^ though 
pallor, under many circumstances, was considered to sanc- 
tion the application of torture,^ even as a pot containing 
toads, found in the home of a suspected witch, justified her 
being placed on the rack.^ In fact, witchcraft, poisoning, 
highway robbery, and other crimes difficult of proof, were 
considered to justify the judge in proceeding to torture on 
lighter indications than offences in which evidence was more 
readily obtainable.* Subtle lawyers thus exhausted their 
ingenuity in discussing all possible varieties of indications, 
and there grew up a mass of confused rules wherein, on 
many points, each authority contradicted the other. In a 
system which thus waxed so. complex, the discretion of the 
judge at last became the only practical guide, and the legal 
writers themselves acknowledge the worthlessness of the 
rules so laboriously constructed when they admit that it is 
left for his decision to determine whether the indications are 
sufficient to warrant the infliction of torture.^ How absolute 

' Fama frequens et vehemens facit indicium ad torturam. (Zanger, c. 
II. No, 80.) Reus ante accusationem vel inquisitionem fugiens et citatus 
contumaciter absens, se sijspectum reddit ut torqueri possit. (Ibid. No. 
91. Cf, Simancse Cathol. Instit Tit. lxv. Nos. 28-30.) Inconstantia 
sermonis facit indicium ad torturam. (Zanger. Nos. 96-99.) Ex taciturni- 
tate oritur indicium ad torturam. (Ibid. No. 103.) Physiognomia malam 
naturam arguit, non autem delictum. (Ibid. No. 85.) How exceedingly 
lax was the application of these rules may be guessed from a remark of 
Damhouder's, that although rumor was sufficient to justify torture, yet a 
contrary rumor neutralized the first and rendered torture improper. — Dam- 
houder. Rer. Crimin. Praxis cap. xxxv. Nos. 14, 15. 

2 Deinde a pallore et similibus oritur indicium ad torturam secundum 
Bartol. (Emer. a Rosbach Tit. v. c. vii. Nos. 28-31.) Whereupon von 
Rosbach enters into a long dissertation as to the causes of paleness. 

8 Godelmanni de Magis Lib. in. cap. x. ^ 29. 

4 Scialojse Praxis torquendi Reos cap. iii. No. 5, 6. 

s Judicis arbitrio relinquitur an indicia sint sufficientia ad torturam. 
(Zanger. cap. ii. Nos. 16-20.) An indicia sufficiant ad torturam judicis 
arbilrio relictum est. . . . Indiciaad torturam sufficientia relinquuntur officio 
judicis. (Emer. a Rosbach Tit v. c. ii. p. 529 ) Damhouder, indeed. 



463 TORTURE. 

was this discretion, and how it was exercised, is manifest 
when Damhouder declares that in his day bloodthirsty judges 
were in the habit of employing the severest torture without 
sufficient proof or investigation, boasting that by its means 
they could extract a confession of everything.^ This fact 
was no novelty, for the practice had existed, we may say, 
since the first introduction of torture. Hippolito dei Mar- 
sigli early in the sixteenth century speaks of judges habitually 
torturing without preliminary evidence, and goes so far as 
to assert, with all the weight of his supreme autliority, that a 
victim of such wrongs if he killed his inhuman judge could 
not be held guilty of homicide nor be punished with death 
for the slaying.'^ It was perhaps to avoid this responsibility 
that some of these zealous law-despisers resorted to the most 
irregular means to procure evidence. Godelmann and von 
Rosbach both tell us that the magistrates of their time, in the 
absence of all evidence, sometimes had recourse to sorcerers 
and to various forms of divination in order to obtain proof 
on which they could employ the rack or strappado. Boys 
whose shoes were newly greased with lard were thought to 
have a special power of detectmg witches, and enthusiastic 
judges accordingly would sometimes station them, after duly 
anointing their boots, at the church doors, so that the luck- 
less wretches could not get out without being recognized.^ 

How shocking was the abuse made of this arbitrary power 
is well illustrated by a case which occurred in the Spanish 

states that no rules can be framed — "neque ea ullis innituntur regulis : sed 
universum id negotium geritur penes arbilrium, discretionem ac conscien- 
tiam judicis." — Rer. Crimin. Praxis cap. xxxvi. Nos. I, 2. Cf. Braune 
Dissert, de Tortura Valetudin. Halae Cattor. 1740. 

' Sunt tamen nonnullipraetores et judices sanguine fraterno adeo inexsa- 
turabiles ut illico quemvis malse famae virum, citra ulla certa argumenta 
aut indicia, coiripiant ad srevissimam torturam, inclementer dicentes, cru- 
ciatum facile ab illis extorturum rerum omnium confessioiiem. — Damhou- 
der. Rer. Crimin. Praxis cap. xxxv. No. 13. 

2 Hipp, de Marsiliis Singularia, No. 455 (Venet. 1555). 

3 Godelmanni de Magis Lib. ill. cap. v. ^ 26. — Emer. a Rosbach Tit. 
v. c. X. No. 25. 



EMPLOYED AT DISCRETION. 469 

colony of New Grenada about the year 1580. The judges 
of the royal court of Santafe had rendered themselves odious 
by their cruelty and covetousness, when one morning some 
pasquina^les against them were found posted in the public 
plaza. Diligent search failed to discover the author, but a 
victim was found in the person of a young scrivener whose 
writing was thought to bear some resemblance to that of the 
offensive papers. He was at once seized, and though libel 
was not an offence, under the civil law, which justified the 
application of torture, he was ordered to the rack, when he 
solemnly warned the judge deputed to inflict it that if he 
should die under it he would summon his tormentor to 
answer in the presence of God within three days. The 
judge was intimidated and refused to perform the office, but 
another was found of sterner stuff who duly performed his 
functions without extracting a confession, and the accused was 
discharged. Then a man who desired to revenge himself on 
an enemy asserted that the writing of the latter was like that 
of the pasquinades. Juan Rodriguez de los Puertos, the 
unfortunate thus designated, was immediately arrested with 
all his family. An illegitimate son was promptly tortured, 
and stated that his father had written the libels and ordered 
him to post them. Then Juan himself was ordered to the 
rack, but, while protesting his innocence, he begged rather 
to be put to death, as he was too old to endure the torment. 
He was accordingly hanged, and his son was scourged with 
two hundred lashes. All that was needed to render manifest 
the hideous injustice of this proceeding was developed a few 
years later, when the judge who was afraid to risk the appeal 
of the first victim was condemned to death for an assassina- 
tion, and on the scaffold confessed that he himself had been 
the author of the libels against his brother justices.^ 

' Groot, Historia Ecclesiastica y Civil de Nueva Granada, Bogotd, 1869, 
T. I. pp. 1 14-5, 116-20. Cf. Scialojae Praxis torquendi Reos, cap. i. 
No. 25. 

40 



470 TORTURE. 

Such a system tends of necessity to its own extension, and 
it is therefore not surprising to find that the aid of torture 
was increasingly invoked. The prisoner who refused to 
plead, whether there was any evidence against him or not, 
could be tortured until his obstinacy gave way.-^ Even wit- 
nesses were not spared, whether in civil suits or criminal 
prosecutions.^ It was discretionary with the judge to inflict 
moderate torture on them, when the truth could not other- 
wise be ascertained. Witnesses of low degree could always 
be tortured for the purpose of supplying the defect in their 
testimony arising from their condition of life. Some jurists, 
indeed, held that no witness of low or vile condition could 
be heard without torture, but others maintained that poverty 
alone was not sufficient to render it necessary. Witnesses who 
were infamous could not be admitted to testify without tor- 
ture; those of good standing were tortured only when they 
prevaricated, or when they were apparently committing per- 
jury f but, as this was necessarily left with the judge to de- 
termine, the instructions for him to guide his decision by 
observing their appearance and manner show how completely 
the whole case was in his power, and how readily he could 
extort evidence to justify the torture of the prisoner, and 
then extract from the latter a confession by the same means. 
In prosecutions for treason, all witnesses, irrespective of 
their rank, were liable to torture,* so that when Pius IV., in 
1560, was determined to ruin Cardinal Carlo Caraffa, no 
scruple was felt, during his trial, as to torturing his friends 
and retainers to obtain the evidence upon which he was exe- 
cuted.^ There was a general rule that witnesses could not 

> Rosbadi Tit. v. cap. x. No. 2. 

2 Ibid. Tit. V. cap. xiv. No. 16. — Goetzii Dissert, de Tortura, p. 54. 

3 Scialojse Praxis torquendi Reos cap. xiv. No. 5-20. — Jo. Frid. Wer- 
ner Dissert, de Tortura Testium, Erford. 1724, pp. 72 sqq. 

4 Passerini Regulare Tribunal, Quaest. xv. Art. ix. No. 115. (Colon, 
Agripp. 1665.) 

5 Process, contr. Card, de Carrafa (Hoffman. Collect. Script. I. 632). 



TORTURE OF WITNESSES. 471 

be tortured until after the examination of the accused, be- 
cause, if he confessed, their evidence was superfluous, but 
there were exceptions even to this, for if the criminal was 
not within the power of the court, witnesses could be tor- 
tured to obtain evidence against him in his absence.^ Indeed, 
in the effort made early in the sixteenth century to reform 
the abuse of torture in Bologna, it was provided that if there 
were evidence to show that a man was acquainted with a 
crime he could be tortured to obtain evidence on which to 
base a prosecution, and this before any proceedings had 
been commenced against the delinquent.^ Evidently there 
was no limit to the uses to which torture could be put by a 
determined legislator. 

An ingenious plan was also adopted by which, when two 
witnesses gave testimony irreconcilable with each other, their 
comparative credibility was tested by torturing both simulta- 
neously in each other's presence.^ Evidence given under tor- 
ture was esteemed the best kind, and yet with the perpetually 
recurring inconsistency which marks this branch of criminal 
law it was admitted that the spontaneous testimony of a man 
of good character could outweigh that of a disreputable per- 
son under torment.* Witnesses, however, could not be tor- 
tured more than three times f and it was a question mooted 
between jurists whether their evidence thus given required, 
like the confession of an accused person, to be subsequently 
ratified by them.^ A reminiscence of Roman law, moreover, 
is visible in the rule that no witness could be tortured against 
his kindred to the seventh degree, nor against his near con- 
nections by marriage, his feudal superiors, or other similar 
persons.^ 

' Scialojae Praxis torquendi Reos c. xiv. No, 2. 

2 Statuta Criminalia Communis Bononiae (Bononiae 1525, p, 15 b). 

3 Damhouder, op. cit. cap. xlvii. No. 3. 

4 Passerini, loc. cit. Nos. 122-3. ^ Ibid. No. 1 18. 
6 Simancse de Cathol. Instit. Tit. Lxv. No. 73. 

1 Zangeri op. cit. I. No. 8-25. 



472 TORTURE. 

Some limitations were imposed as to age and strength. 
Children under fourteen could not be tortured, nor the aged 
whose vigor was unequal to the endurance, but the latter 
could be tied to the rack, and menaced to the last extremity; 
and the elasticity of the rule is manifested in a case which 
attracted attention at Halle in the eighteenth century, in which 
a man more than eighty years of age was decided to be fit to 
bear the infliction, and only escaped by opportunely dying. ^ 
Insanity was likewise a safeguard, and much discussion was 
had as to whether the deaf, dumb, and blind were liable or 
not. Zanger decides in the affirmative, whenever, whether 
as principals or witnesses, good evidence was to be expected 
from them ;2 and Scialoja points out that though deaf-mutes 
as a rule are not to be tortured because they cannot dictate a 
confession, yet if they can read and write so as to understand 
the accusation and write out what they have to say, they are 
fit subjects for the torturer.^ Pregnant women also were 
exempt until forty days after childbed, even though they 
had become so in prison for the express purpose of post- 
poning the infliction.* Some kinds of disease likewise con- 
ferred exemption, and jurisconsults undertook with their 
customary minuteness to define with precision this nosology 
of torture, leading to discussions more prolonged than pro- 
fitable. Gout, for instance, gave rise to doubt, and some 
authors were found to affirm that they knew of cases in which 
gouty patients had been cured by a brisk application of the 
implements of the marter-kamnie?' or torture chamber.^ 
Other legists gravely disputed whether in the case of epi- 
leptics the judge should bear in mind the aspects of the 
moon and the equinoxes and solstices, at which times the 
paroxysms of the disease were apt to be more violent. 

' Braune Diss, de Tortura Valetudinar. p. 32. 

2 Zangeri op. cit. cap, I. Nns. 34-48. 

3 Scialojse Praxis torquendi Reos c. xiii. No. 21. 

4 Ibid. No. 24-30. 

^ Goetzii Dissert, de Tortura, Lipsia), 1742, pp. 46-8. 



INJUSTICE TO THE ACCUSED. 473 

Those who thus escaped torture on account of disease pre- 
sented a problem which the jurists solved in their ordinary- 
fashion by condemning them to some other punishment than 
that provided for the crime of which they had been accused 
but not convicted.^ 

There doubtless was good reason underlying the Roman 
rule, universally followed by modern writers, that, whenever 
several parties were on trial under the same accusation, the 
torturer should commence with the weakest and tenderest, 
for thus it was expected that a confession could soonest be 
extracted ; but this eager determination to secure conviction 
gave rise to a refinement of cruelty in the prescription that 
if a husband and wife were arraigned together, the wife 
should be tortured first, and in the presence of her husband ; 
and if a father and son, the son before his father's face.^ 

Some facilities for defence were allowed to the accused, 
but in practice they were almost hopelessly slender. He 
was permitted to employ counsel, and if unable to do so, it 
was the duty of the judge to look up testimony for the de- 
fence.^ After all the adverse evidence had been taken, and 
the prisoner had been interrogated, he could ask to see 
a copy of the proceedings, in order to frame a defence ; 
but the request could be refused, in which case, the judge 
was bound to sift the evidence himself, and to investigate 
the probabilities of innocence or guilt. The right of the 
accused to see the evidence adduced against him was still 
an open question so recently as 1742, for Goetz deems 
it necessary to argue at some length to prove it.* The 
recognized tendency of such a system to result in an un- 
favorable conclusion is shown by Zanger's elaborate in- 
structions on this point, and his warning that, however 
justifiable torture may seem, it ought not to be resorted to 

1 Braune Diss, de Tortura Valetudinar. pp. 24, 43. 

2 Zangeri cap. IV. Nos. 25-30. — Damhouder op. cit. cap. xxxvii. Nos. 
15, 16. 

3 Zangeri op. cit. cap. III. No. 3. * Goetzii op. cit. p. 36. 

40* 



474 TORTURE, 

without at least looking at the evidence which maybe at- 
tainable in favor of innocence ;^ while von Rosbach charac- 
terizes as the greatest fault of the tribunals of his day, tlieir 
neglect to obtain and consider testimony for the accused as 
well as that against him.^ Indeed, when the public interest 
was deemed to require it, all safeguards were withdrawn 
from the prisoner, as when, in 1719 in Saxony, a mandate 
was issued declaring that in cases of thieves and robbers no 
defence or exceptions or delays were to be admitted.^ In 
some special and extraordinary cases, the judge might allow 
the accused to be confronted with the accuser, but this was 
so contrary to the secrecy required by the inquisitorial sys- 
tem, that he was cautioned that it was a very unusual course, 
and one not lightly to be allowed, as it was odious, unneces- 
sary, and not pertinent to the trial.* 

Theoretically, there was a right of appeal against an order 
to inflict torture, but this, even when permitted, could usually 
avail the accused but little, for the ex parte testimony, which 
had satisfied the lower judge, could, of course, in most in- 
stances, be so presented to the higher court as to insure the 
affirmation of the order, and prisoners, in their helplessness, 
would doubtless feel that by the attempt to appeal they would 
probably only increase the severity of their inevitable suffer- 
ings.^ Moreover, such appeals were ingeniously and effect- 
ually discouraged by subjecting the advocate of the prisoner 
to a fine or some extraordinary punishment if the appeal was 
pronounced to be frivolous f and some authorities, among 
which was the great name of Carpzovius, denied that in the 
inquisitorial process there was any necessity of communica- 

' Zangeri op. cit. cap. III. Nos. I, 4, 5-43. 

2 Process. Crim. Tit. v. cap. xi. No. 6. 3 Goetzii op. cit. p. 35. 

4 Zangeri cap. 11. Nos. 49-50, — Cum enim confrontalio odiosa sit et 
species suggestionis, et remedium extraordinarium ad substantiam processus 
non pertinens, et propterea non necessaria. 

5 Ibid. caj). IV. Nos. 1-6. 

6 Goetzii Dissert, de Tortura p. 34. 



HELPLESSNESS OF THE ACCUSED. 475 

ting to the accused the order to subject him to torture and 
then allow him time to appeal against it if so disposed.^ 

Slender as were these safeguards in principle, they were 
reduced in practice almost to a nullity. That the discretion 
lodged in the tribunals was habitually and frightfully abused 
is only too evident, when von Rosbach deems it necessary 
to reprove, as a common error of the judges of his time, the 
idea that the use of torture was a matter altogether dependent 
upon their pleasure, ''as though nature had created the 
bodies of prisoners for them to lacerate at will."^ Thus it 
was an acknowledged rule that when guilt could be satis- 
factorily proved by witnesses, torture was not admissible f 
yet Damhouder feels it necessary to condemn the practice 
of some judges, who, after conviction by sufficient evidence, 
were in the habit of torturing the convict, and boasted that 
they never pronounced sentence of death without having 
first extorted a confession.* Moreover, the practice was 
continued which we have seen habitual in the Chatelet of 
Paris in the fourteenth century, whereby, after a man had 
been duly convicted of a capital crime, he was tortured to 
extract confessions of any other offences of which he might 
be guilty;^ and as late as 1764, Beccaria lifts his voice 
against it as a still existing abuse, which he well qualifies as 
senseless curiosity, impertinent in the wantonness of its 
cruelty.® Martin Bernhardi, writing in 1705, asserts that 

1 Braune Dissert, de Tortura Valetudin. p. 16. 

2 Process, Criniin, Tit. V. cap, ix. No. 10. 

3 Zangeri cap. i. No. t,"]. 

4 Rer, Crimin, Praxis cap, xxxviii. Nos. 6, 7. 

5 Boden de Usu et Abusu Torturae Th. xii. Damhouder declares this 
practice to be unjustifiable, though not infrequent, — Rer. Crimin. Praxis 
cap. xxxvii. No, 12. 

6 He represents the judge as addressing his victim " Tu sei il reo di un 
delitto, dunque h possibile che lo sii di cent' altri delitti : questo dubbio 
mi pesa, vogho accertarmene col mio criterio di verita : le leggi ti tor- 
mentano, perche sei reo, perche puoi esser reo, perche voglio che tu sii 
reo." — Dei Delitti e delle Pene, 3 xii. 



47^ TORTURE. 

this torture after confession and conviction was also resorted 
to in order to prevent the convict from appealing from the 
sentence.^ So, although a man who freely confessed a crime 
could not be tortured, according to the general principle of 
the law, still, if in his confession he adduced mitigating cir- 
cumstances, he could be tortured in order to force him to 
withdraw them ;^ and, moreover, if he were suspected of 
having accomplices and refused to name them, he could be 
tortured as in the questio7i pi-ealable of the French courts.^ 
Yet the accusation thus obtained was held to be of so little 
value that it only warranted the arrest of the parties incrimi- 
nated, who could not legally be tortured without further 
evidence.* In the face of all this it seems like jesting mockery 
to find these grim legists tenderly suggesting that the pris- 
oner should be tortured only in the morning lest his health 
should suffer by subjecting him to the question after a full 
meal.^ 

Another positive rule was that torture could only be ap- 
plied in accusations involving life or limb.^ Thus, for in- 
stance, in provinces where usury was punishable only by 
confiscation, torture could not be used to prove it, but where 
it entailed also some corporal infliction, the accused could 
be subjected to the rack."^ Yet when Bologna undertook to 
remove the abuses of her torture system she still allowed it 
in cases involving a pecuniary fine of a hundred lire, or 
over.^ Whipping being a corporal punishment, and yet a 

• Martini Bernhardi Diss. Inaug, de Tortura cap. I. \ 4. Scialoja, in 
1653, assures us that this torture after confession to prevent appeals was 
no longer permitted in the Neapolitan courts, and that it was only allowed 
for the discovery of accomplices. (Praxis torquendi Reos. c. i. No. 8-10. 
Neap. 1653.) 

2 Scialojae op. cit. cap. i. No. 14. 

3 Damhouder. Rer. Crimin. Prax. cap, xxxv. No. 9, cap. xxxviii. No. 
14. — Werner Dissert, de Tortura Testium pp. 76 sqq. 

* Damhoud. cap. xxxix. No. 6. ^ Goetzii Dissert, de Tortura p. 26. 
6 Zangeri Proefat. No. 31. ' Scialojce op. cit. cap. i. No. 27. 

s Staluta Criminalia Communis Bononins, p. 15 «. 



DlSRECxARD OF LIMITATIONS. 477 

much lighter infliction than torture, the legists were divided 
as to whether a crime for which it was the only penalty 
was one involving the liability of the accused to torture, 
but the weight of authority, as usual, leaned to the side of 
the free employment of the rack.^ All these fine-spun dis- 
tinctions, however, were of little moment, for Senckenberg 
assures us that he had known torture to be resorted to in 
mercantile matters, where money only was at stake f and it 
was a general rule of mercantile law that it could be em- 
ployed in accusations of fraudulent bankruptcy.^ 

Equally absolute was the maxim that torture could not be 
employed unless there was positive proof that crime of some 
sort had been committed, for its object was to ascertain the 
criminal and not the crime ;* yet von Rosbach remarks that 
as soon as any one claimed to have lost anything by theft, 
the judges of his day hastened to torture all suspect, without 
waiting to determine whether or not the theft had really 
been committed as assumed;^ and von Boden declares that 
many tribunals were in the habit of resorting to it in cases 
wherein subsequent developments showed that the alleged 
crime had really not taken place, a proceeding jocosely 
characterized by a brother lawyer as putting the cart before 
the horse, and bridling him by the tail/ The history of 
torture is full of cases illustrating its effectiveness when thus 
used. Boyvin du Villars relates that during the war in Pied- 

' Goetzii Dissert, de Tortura \)-p. 52-3. 

2 Zangeri Tract. Not. ad p. 903. 

3 Scialojae op. cit. cap. i. No. 34. — Goetzii Dissert, de Tortura p. 53. 
— Bernhard (Diss. Inaug. de Tort. cap. i. | iv. ) states that in these cases 
not only the principals but even the witnesses could be tortured if suspected 
of concealing the truth. 

* Zangeri Praefat. No. 32. — Tortura enim datur non ad liquidandum fac- 
tum sed personam. — Damhouder. Rer. Crimin. Prax. cap. xxxv. No. 7. 

5 Process. Criminal. Tit. v. cap. ix. No. 17, 

6 De Usu et Ab. Tort. Th. ix. — Qui aliter procedit judex, equum cauda 
frenat et post quadrigas cabaUum jungit. 



478 TORTURE. 

moDt, in 1559, he released from the dungeons of the Marquis 
of Masserano an unfortunate gentleman who had been secretly- 
kept there for eighteen years, in consequence of having at- 
tempted to serve a process from the Duke of Savoy on the 
marquis. His disappearance having naturally been attributed 
to foul play, his kind] ed prosecuted an enemy of the family, 
who, under stress of torture, duly confessed to having com- 
mitted the murder, and was accordingly executed in a town 
where Masserano himself was residing/ Godelmann relates 
that a monument in a church in upper Germany representing 
a man broken on a wheel commemorated a case in which 
two young journeymen set out together to make the accus- 
tomed tour of the country. One of them returned alone, 
clad in the garments of the other, and was suspected of hav- 
ing made way with him. He was arrested, and in the absence 
of all other evidence was promptly put to the torture, when 
he confessed the crime in all its details, and was executed on 
the wheel — soon after which his companion returned. An- 
other case was that of a young man near Bremen whose 
widowed mother lived in adultery with a servant. The son 
quarrelled with the man, who fled and took service with 
another employer at a considerable distance. His father, 
not knowing his departure, accused the youth of murder ; 
and torture speedily drew from the latter a full confession of 
the crime, including his throwing the corpse into the Weser. 
Not long after his execution the adulterous serving man re- 
appeared and was duly put to death, as also was his father, 
to make amends for the blunder of the la^v.^ 

We have seen above, that, theoretically, the prisoner was 
entitled to have a copy of the secret evidence against him ; yet 
von Rosbach states that judges were not in the habit of permit- 
ting it, though no authority justified them in the refusal ;'' and 

' Boyvin du Villars, Memoires, Liv. VII. 

2 Godelmanni de Magis Lib. III, cap. x. 

8 Process. Criminal. Tit. v. cap. x. No. 7. 

We have already seen (p. 453) that in France the accused was not al- 



DISREGARD OF JUSTICE. 479 

half a century later this is confirmed by Bernhardi, who 
gives as a reason that by withholding the proceedings from 
the accused they saved themselves trouble/ Even the in- 
alienable privilege of being heard in his det''ence was habit- 
ually refused by many tribunals, which proceeded at once to 
torture after hearing the adverse evidence, a refinement of 
cruelty and injustice which called forth labored arguments 
by von Rosbach and Simancas to prove its impropriety, thus 
showing it to be widely practised.^ In the same way, the 
right to ai^peal from an order to torture was evaded by 
judges, who sent the prisoner to the rack without a prelimi- 
nary formal order, thus depriving him of the opportunity of 
appealing.^ Indeed, in time it was admitted by many jurists 
that the judge at his pleasure could refuse to allow an appeal ; 
and that in no case was he to wait more than ten days for the 
decision of the superior tribunal.* 

If the irresponsible power which the secret inquisitorial 
process lodged in the hands of judges was thus fearfully 
abused in setting aside all the safeguards provided for the 

lowed to see the evidence against him; and the same rule was in force in 
Flanders — " Toutes depositions de tesnioins en causes criminelles demeur- 
eront secretes a I'egard de I'accuse." — Coutume d'Audenarde, Stile de la 
Procedure, Art. 10. (Le Grand, Coutumes de Flandre, Cambrai, 1 719, p. 

103.) _ 

' Diss. Inaug. cap. I. ^ xii. 

2 Emer. a Rosbach Process. Criminal. Tit. v. cap. x. Nos. 8-16. — Si- 
mancse Cath. Inst. LXV. 17. 

3 Bernhardi, loc. cit. The difference between the practice and princi- 
ples of the law is shown by the rules laid down in 1 647 by Brunnemann, 
coexisting with the above. He directs that the proceedings are to be ex- 
hibited to the accused or his friends, and then submitted to a college of 
jurists who are to decide as to the necessity of torture, and he warns the 
latter that they can have no graver question placed before them — " Et sane 
nullam graviorem puto esse deliberationem in Collegiis Juridicis quam ubi 
de tortura infligenda agitur." — Brunneman. de Inquisitionis Processu cap. 
VIII. Memb. iv. No. 10; Memb. v. No. i. 

* Passerini Regulare Tribunal; Praxis, cap. viii. No. 170. 



480 TORTURE. 

prisoner by law, it was none the less so in disregarding the 
limitations provided against excessive torture. A universal 
prescription existed that the torment should not be so severe 
or so prolonged as to endanger life or limb, or to permanently 
injure the patient ; but Senckenberg assures us that he was 
personally cognizant of cases in which innocent persons had 
been crippled for life by torture under false accusations ;' 
and the meek Jesuit Del Rio, in his instructions to inquisitors, 
quietly observes that the flesh should not be wounded nor the 
bones broken, but that torture could scarce be properly ad- 
ministered without more or less dislocation of the joints.^ 
There is indeed something very suggestive in the direction 
which Siraancas gives to judges, that they should warn the 
accused when brought into the torture-chamber, that if he is 
crippled or dies under the torture he must hold himself ac- 
countable for it in not spontaneously confessing the truth, ^ 
Von Boden, moreover, very justly points out the impossibility 
of establishing any rules or limitations of practical utility, 
when the capacity of endurance varies so greatly in different 
constitutions, and the executioners had so many devices for 
heightening or lessening, within the established bounds, the 
agony inflicted by the various modes of torture allowed by 
law. Indeed, he does not hesitate to exclaim that human 
ingenuity could not invent suffering more terrible than was 
constantly and legally employed, and that Satan himself 
would be unable to increase its refinements.* Godelmann, 
in fact, sums up by declaring that the degree and number of 
applications of torture must be left to the discretion of the 

' Not. ad p. 907 Zangeri op. cit. 

2 Del Rio Magicar. Disquisit. Lib. V, sect. ix. 

3 Simancse cle Cathol. Instit. Tit. LXV. No. 56. 

4 De Usii^et Abusu Tort. Th. xiii. 

It must not be supposed from this and the preceding extracts that von 
Boden was an opponent of torture on principle. Within certain bounds, 
he advocated its use, and he only deplored the excessive abuse of it by the 
tribunals of the day. 



INFLUENCE ON THE JUDGE. 481 

judge, who is to proportion it to the quality of the accused 
and the strength of the suspicions against him/ 

It is true that the old rules which subjected the judge to 
some responsibility were still nominally in force. When 
torture was ordered without a preliminary examination, or 
when it was excessive and caused permanent injury, the judge 
was held by all authorities to have acted through malice, and 
his office was no protection against reclamation for damages.^ 
Zanger also quotes the Roman law as still in force, to the 
effect that if the accused dies under the torture, and the 
judge has been either bribed or led away by passion, his 
offence is capital, while if there had been insufficient pre- 
liminary evidence, he is punishable at discretion.^ The 
secrecy of criminal trials, however, offered an almost im- 
penetrable shield to the judge, and the recital by Godelmann 
of the various kinds of evidence by which the prisoner could 
prove the fact that he had been subjected to torture shows how 
difficult it was to penetrate into the secrets of the tribunals.* 
According to Damhouder, indeed, the judge could clear 
himself by his own declaration that he had acted in accord- 
ance with the law, and without fraud or malice.^ We are 
therefore quite prepared to believe the assertion of Sencken- 
berg that the rules protecting the prisoner had become ob- 
solete, and that he had seen not a few instances of their 
violation without there being any idea of holding the judge 
to accountability,^ an assertion which is substantially con- 
firmed by Goetz.'^ 

Not the least of the evils of the system, indeed, was its 
inevitable influence upon the judge himself. He was re- 
quired by his office to be present during the infliction of 
torture, and to conduct the interrogatory personally. Cal- 

' Godelmanni de Magis Lib, ill. cap. x. ^ 36. 

2 Zangeri op. cit. cap. i. No. 42-44. 3 Ibid, cap. in. No. 20-22. 

* Godelmanni 1. c. § 54, ^ Ca.p. xxxviii. No, 18. 

6 Zangeri cap. ill. No. 20-22. ^ 

7 Goetzii Dissert, de TorUira p. 74. 

41 



482 TORTURE. 

lousness to human suffering, whether natural or acquired, 
thus became a necessity, and the delicate conscientiousness 
which should be the moving principle of every Christian 
tribunal was well-nigh an impossibility.^ Nor was this all, 
for when even a conscientious judge had once taken upon 
himself the responsibility of ordering a fellow-being to the 
torture, every motive would lead him to desire the justifica- 
tion of the act by the extortion of a confession ;^ and the 
very idea that he might be possibly held to accountability, 
instead of being a safeguard for the prisoner, became a cause 
of subjecting him to additional agony. Indeed, the prudence 
of persevering in torture until a confession was reached was 
at least recognized, if not advised, by jurists, and in such a 
matter to suggest the idea was practically to recommend it.^ 
Both the good and the evil impulses of the judge were thus 
enlisted against the unfortunate being at his mercy. Human 
nature was not meant to face such temptations, and the fearful 
ingenuity, which multiplied the endless refinements of tor- 
ment, testifies how utterly humanity yielded to the thirst of 
wringing conviction from the weaker party to the unequal 

' So thoroughly was this recognized, that in 1668 Racine represents a 
judge, desirous of ingratiating himself with a young girl, as offering to ex- 
hibit to her the spectacle of the question as an agreeable pastime. 
" Dandin. N'avez vous jamais vu donner la question ? 
IsABELLE. Non, et ne le verrai, que je crois de ma vie. 
Dandin. Venez, je vous en veux faire passer I'envie. 
IsABELLE, He ! Monsieur, peut-on voir souffrir les malhereux ? 
Dandin. Bon! cela fait toujours passer une heure ou deux." 

Les Plaidetirs, Acte III. Sc. derniere. 

2 Fortescue, in his arguments against the use of torture, does not fail to 
recognize that the acquittal of a tortured prisoner is the condemnation of 
the judge — "qui judex eum pronuntiet innocentem, nonne eodem judicio 
judex ille seipsum reum judicat omnis ssevitise et poenarum quibus inno- 
centem aflflixit?" (De Laud, Legg. Angl. cap. xxii.) 

3 Occurrit hie cautela Bruni dicentis, si judex indebite torserit aliquem, 
facit reum confiteri quod fuit legitime tortus, de qua confessione facial nota- 
rium rogatum. — Rosbach. Process. Crim. Tit. v. cap. xv. No. 6. 



INFLUENCE ON THE JUDGE. 483 

conflict, where he who should have been a passionless arbiter 
was made necessarily a combatant. How completely the 
prisoner thus became a quarry to be hunted to the death is 
shown by the jocular remark of Farinacci, a celebrated au- 
thority in criminal law, that the torture of sleeplessness, in- 
vented by Marsigli, was most excellent, for out of a hun- 
dred martyrs exposed to it not two could endure it without 
becoming confessors as well.' Few, when once engaged in 
such a pursuit, could be expected to follow the example of 
the Milanese judge, who resolved his doubts as to the efficacy 
of torture in evidence by killing a favorite mule, and allowing 
the accusation to fall upon one of his servants. The man of 
course denied the offence, was duly tortured, confessed, and 
persisted in his confession after torture. The judge, thus 
convinced by experiment of the fallacy of the system, re- 
signed the office whose duties he could no longer conscien- 
tiously discharge, and in his subsequent career rose to the 
cardinalate. The mode in which these untoward results were 
usually treated is illustrated in another somewhat similar case 

1 Quoted by Nicolas, Diss. Mor. et Jurid. sur la Torture, p. 21. This 
mode of torture consisted in placing the accused betv/een two jailers, who 
pummelled him whenever he began to doze, and thus, with proper relays, 
deprived him of sleep for forty hours. Its inventor considered it humane, 
as it endangered neither life nor limb, but the extremity of suffering to 
which it reduced the prisoner is shown by its efficaciousness, 

I have purposely abstained from entering into the details of the various 
forms of torture. They may be interesting to the antiquarian, but they 
illustrate no principle, and little would be gained by describing these melan. 
choly monuments of human error. Those who may be curious in such mat- 
ters will find ample material in Grupen Observat. Jur. Crim, de Applicat. 
Torment., 4to., Hanov. 1754; Zangeri op. cit. cap. IV. No. 9, 10; Hieron. 
Magius de Equuleo cum Appendd. Amstelod. 1664, etc. According to 
Bernhardi, Johann Graefe enumerates no less than six hundred different 
instruments invented for the purpose. Damhouder (op. cit. cap. xxxvii. 
No. 17-23) declares that torture can legally be inflicted only with ropes, 
and then proceeds to describe a number of ingenious devices. One of 
these, which he states to produce insufferable torment without risk, is 
bathing the feet with brine and then setting a goat to lick the soles. 



484 TORTURE. 

which was told to Aiigustin Nicholas at Amsterdam in ex- 
planation of the fact that the city was obliged to borrow a 
headsman from the neighboring towns whenever the services 
of one were required for an execution. It appears that a 
young man of Amsterdam, returning home late at night from 
a revel, sank upon a door-step in a drunken sleep. A thief 
emptied his pockets, securing, among other things, a dirk, 
with which, a few minutes later, he stabbed a man in a ciuarrel. 
Returning to the sleeper, he slipped the bloody weapon back 
to its place. The young man awoke, but, before he had taken 
many steps, he was seized by the watch, who had just dis- 
covered the murder. Appearances were against him ; he 
was tortured, confessed, persisted in confession after torture, 
and was duly hanged. Soon after, the real criminal was 
condemned for another crime, and revealed the history 
of the previous one, whereupon the States General of the 
United Provinces, using the ordinary logic of the criminal 
law, deprived the city of Amsterdam of its executioner, as a 
punishment for a result that was inevitable under the system.-^ 
In theory, the accused could be tortured only once, but 
this, like all other restrictions in favor of humanity, amounted 
to but little. A repetition of torture could be justified on 
the ground that the first application had been light or insuf- 
ficient; the production of fresh evidence authorized a second 
and even a third infliction; a failure to persevere in confes- 
sion after torture rendered a repetition requisite ; and even a 
variation in the confession required confirmation by the rack 
or strappado.^ In fact, some authorities go so far as to place 
it entirely at the discretion of the judge whether the accused 
shall be subjected or not to repeated torment without fresh 
evidence,^ and Del Rio mentions a case occurring in West- 

• Aiigustin Nicholas, op, cit. pp. 169, 178. 

2 Zangeri cap. v. No. 73-83. 

3 Damhouder. op, cit. cap. xxxviii. No, 3, 4. — Roshach. Tit. v. cap. 
XV. No. 14. — Simancas, however, declares that only two applications of 
torture are allowable (De Cathol. Instit. Tit, Lxv. No. 76, 81). 



ESTIMATE PLACED ON CONFESSION. 485 

phalia wherein a man accused of lycanthropy was tortured 
twenty times;\ while Damhouder finds it necessary to reprove 
the excessive zeal of some judges who were in the habit of 
exposing obstinate prisoners to prolonged and excessive 
hunger and thirst, in the determination to extract a confes- 
sion from thera.^ 

The frequency with which torture was used is manifested 
in the low rate which was paid for its application. In the 
municipal accounts of Valenciennes, between 1538 and 1573, 
the legal fee paid to the executioner for each torturing of a 
prisoner is only two sous and a half, while he is allowed 
the same sum for the white gloves worn at an execution, 
and ten sous are given him for such light jobs as piercing 
the tongue.^ 

With all this hideous accumulation of cruelty which shrank 
from nothing in the effort to wring a confession from the 
wretched victim, that confession, when thus so dearly ob- 
tained, was estimated at its true worthlessness. It was insuf- 
ficient for conviction unless confirmed by the accused in a 
subsequent examination beyond the confines of the torture- 
chamber, at an interval of. from one to three days.* This 
confirmation was by no means universal, and the treatment of 
cases of retracted confession was the subject of much debate. 
Bodin, in 1579, complains that witches sometimes denied what 
they had confessed under torture, and that the puzzled judge 
was then obliged to release them.^ Such a result however was 
so totally at variance with the determination to obtain a con- 
viction which marks the criminal jurisprudence of the period 
that it was not likely to be submitted to with patience. Ac- 
cordingly the general practice was that if the confession was 
retracted, the accused was again tortured, when a second 

' Disquis, Magicar, Lib. v, sect. ix. 2 Cap. xxxviii. No, 13. 

3 Louise, Sorcelierie et Justice Criminelle a Valenciennes. (Valenci- 
ennes, 1861, pp. 121-125.) 

4 Goetzii Diss, de Tortura p. 71. 

5 Bodin de Magor. Daemonom. (Basil. 1581, p. 325.) 



486 TORTURE. 

confession and retraction made an exceedingly awkward 
dilemma for the subtle jurisconsults. They agreed that he 
should not be allowed to escape after giving so much trouble. 
Some advocated the regular punishment of his crime, others 
demanded for him an extraordinary penalty; some, again, 
were in favor of incarcerating him ;^ others assumed that he 
should be tortured a third time, when a confession, followed 
as before by a recantation, released him from further torment, 
for the admirable reason that nature and justice alike abhorred 
infinity.^ This was too metaphysical for some jurists, who 
referred the whole question to the discretion of the judge, 
with power to prolong the series of alternate confession and 
retraction indefinitely, acting doubtless on the theory that 
most prisoners were like the scamp spoken of by Ippolito dei 
Marsigli, who when asked by the judge why he retracted 
his confession replied that he would rather be tortured a 
thousand times in the arms than once in the neck, for he 
could easily find a doctor to set his arm but never one to set 
his neck.^ The magistrates in some places were in the habit 
of imprisoning or banishing such persons, thus punishing 
them without conviction, and inflicting a penalty unsuited to 
the crime of which they were accused.* Others solved the 
knotty problem by judiciously advising that in the uncer- 
tainty of doubt as to his guilt, the prisoner should be soundly 

1 Zangeri cap. v. No. 79-81. 

2 Bernhardi Diss. Inaug, cap. I. § xi. 

3 Emer. a Rosbach, op. cit. Tit. v. cap. xviii. No, 13. — Godelmanni de 
Magis L, III. cap. x. ^ 52. — Gerstlacheri Comment, de Qucest. per Tor- 
menta p. 35. So Beccaria (Delitt. e Pene, ^ xri.) — " Alcuni dottori ed 
alcune nazioni non permettono questa infame petizione di principio che 
per tre volte; altre nazioni ed altri dottori la lasciano ad arbitrio del giu- 
dice." 

4 This custom prevailed in Electoral Saxony until the abrogation of tor- 
ture (Goetzii Diss, de Tort. p. 2^), and was especially the case at Amster- 
dam. Meyer (Institutions Judiciaires, IV. 295) states that the registers 
there afford scarcely an instance of a prisoner discharged without convic- 
tion after enduring torture. 



ESTIMATE PLACED ON CONFESSION. 487 

scourged and turned loose, after taking an oath not to bring 
an action for false imprisonment against his tormentors/ but, 
according to some authorities, this kind of oath, or urpheda 
as it was called, was of no legal value. "^ Towards the end of 
the torture system, however, the more humane though not 
very logical doctrine prevailed in Germany that a retraction 
absolved the accused, unless new and different evidence was 
brought forward, and this had to be stronger and clearer 
than before, for the presumption of innocence was now with 
the accused, the torture having purged him of former sus- 
picion.^ 

This necessity of repeating a confession after torture gave 
rise to another question which caused considerable difference 
of opinion among doctors, namely, whether witnesses who 
were tortured had to confirm their evidence subsequenth', 
and whether they, in case of retraction or the presentation of 
fresh evidence, could be tortured repeatedly. As usual in 
doubts respecting torture, the weight of authority was in 
favor of its most liberal use.^ 

There were other curious inconsistencies in the system 
which manifest still more clearly the real estimate placed on 
confessions under torture. If the torture had been inflicted 
by an over-zealous judge without proper preliminary evi- 
dence, confession amounted legally to nothing, even though 
proof were subsequently discovered.^ If, on the other hand, 
absolute and incontrovertible proof of guilt were had, and 
the over-zealous judge tortured in surplusage without extract- 
ing a confession, there arose another of the knotty points to 

' Zangeri loc. cit. 

2 Bernhardi, cap. I. \ xii. — Goetzii op. cit. p. 74. — Cf. Caroli V. Const. 
Crim. cap. xx. \ I. — Goetz (p. 67) derives zirpJieda from tw before, and 

fede enmity. 

3 Goetzii Dissert, de Tortura p. 31. 

* Werner Dissert, de Tortura pp. 91-2. 

5 Zangeri cap. ii. No. 9-10; cap. v. Xo. 19-28.— Damhouder. op. cit. 
cap. xxxvi. No. 36. 



488 TORTURE. 

which the torture system inevitably tended and about which 
jurisconsults differed. Some held that he was to be absolved, 
because torture purged him of all the evidence against him; 
others argued that he was to be punished with the full penalty 
of his crime, because the torture was illegal and therefore 
null and void ; others again took a middle course and decided 
that he was to be visited, not with the penalty of his crime, 
but with something else, at the discretion of his judge. ^ 
According to law, indeed, torture without confession was a 
full acquittal; but here, again, practice intervened to destroy 
what little humanity was admitted by jurists, and the accused 
under such circumstances was still held suspect, and was 
liable at any moment to be tried again for the same offence.^ 
If, again, a man and woman were tortured on an accusation of 
adultery committed with each other, and if one confessed 
while the other did not, both were acquitted according to 
some authorities, while others held that the one who con- 
fessed should receive some punishment different from that 
provided for the crime, while the accomplice was to be dis- 
charged on taking a purgatorial oath.^ Nothing more con- 
tradictory and illogical can well be imagined, and, as if to 
crown the absurdity of the whole., torture after conviction 
was allowed in order to prevent appeals ; and if the unfortu- 
nate, at the place of execution, chanced to assert his inno- 
cence, he was often hurried from, the scaffold to the rack in 
obedience to the theory that the confession must remain un- 

1 Zangeri cap. v. No. i-i8. — Goetzii Dissert, de Tortura pp. 67-9. 

2 Damhouder. op. cit. cap. xl. No. 3. — Bigotry and superslition, espe- 
cially, did not allow their victims to escape so easily. In accusations of 
sorcery, if appearances were against ihe prisoner — that is, if he were of 
evil repute, if he shed no tears during the torture, and if he recovered 
speedily after each application — he was not to be liberated because no con- 
fession could be wrung from him, but was to be kept for at least a year, 
"squaloribus carceris mancipandus et cruciandus, soepissime etiam exami- 
nandus, praecipue sacratioribus diebus." — Riclcii Defens Aq. Probee cap. 
I. No. 22. 

3 Zangeri cap. v. No. 53-61. — Goetzii Dissert, de Tortura p. 57. 



ATROCITY OK THE SYSTEM. 489 

retracted ;^ though, if the judge had taken the precaution to 
have the prisoner's ratification of his confession duly certified 
to by a notary and witnesses this trouble might be avoided, 
and the culprit be promptly executed in spite of his retrac- 
tion.^ One can scarce repress a grim smile at finding that 
this series of horrors had pious defenders who urged that a 
merciful consideration for the offender's soul required that 
he should be brought to confess his iniquities in order to 
secure his eternal salvation.^ It was a minor, yet none the 
less a flagrant injustice that when a man had endured the tor- 
ture without confession, and was therefore discharged as 
innocent, he or his heirs were obliged to defray the whole 
expenses of his prosecution.* 

The atrocity of this whole system of so-called criminal 
justice is forcibly described by the honest indignation of 
Augustin Nicolas, who, in his judicial capacity under Louis 
XIV., had ample opportunities of observing its practical 
working and results. " The strappado, so common in Italy, 
and which yet is forbidden under the Roman law . . . the 
vigils of Spain, which oblige a man to support himself by 
sheer muscular effort for seven hours, to avoid sitting on a 
pointed iron, which pierces him with insufferable pain; the 
vigils of Florence, or of Marsiglio, which have been described 
above; our iron stools heated to redness, on which we place 
poor half-witted women accused of witchcraft, exhausted by 
frightful imprisonment, rotting from their dark and filthy 
dungeons, loaded with chains, fleshless, and half dead ; and 
we pretend that the human frame can resist these devilish 
practices, and that the confessions which our wretched vic- 

J Boden op. cit. Th. v. vi. 

2 Goetzii Dissert, de Tortura p. 72. 

3 Boden op. cit. Th. v. vi. 

4 Goetzii Dissert de Tortura p. 76. Distinction was sometimes made 
between crimes involving death or corporal punishment and those of lighter 
grade, but Goetz states that in his time (1742) in Saxony the above was 
the received practice. 



490 TORTURE. 

tims make of everything that may be charged against them 
are true."^ Under such a scheme of jurisprudence, it is easy 
to understand and appreciate the case of the unfortunate 
peasant, sentenced for witchcraft, who, in his dying confes- 
sion to the priest, admitted that he was a sorcerer, and 
humbly welcomed death as the fitting retribution for the 
unpardonable crimes of which he had been found guilty, but 
pitifully inquired of the shuddering confessor whether one 
could not be a sorcerer without knowing it.^ 

If anything were wanting to show how completely the in- 
quisitorial process turned all the chances against the accused, 
it is to be found in the quaint advice given by Damhouder. 
He counsels the prisoner, when required to plead, to prevent 
his judge from taking advantage of any adverse points that 
might occur, as, for instance, in a charge of homicide to 
assert his innocence, but to add that, if he were proved to 
have committed the crime, he then declares it to have been 
done in self-defence.^ 

We have seen above how great was the part of the Inquisi- 
tion in introducing and moulding the whole system of torture 
on the ruins of the feudal law. Even so, in the reconstruc- 
tion of European jurisprudence, during the sixteenth and 
seventeenth centuries, the ardor of the inquisitorial proceed- 
ings against witchcraft, and the panic on the subject which 
long pervaded Christendom, had a powerful -influence in 
familiarizing the minds of men with the use of torture as a 
necessary instrument of justice, and in authorizing its em- 
ployment to an extent which, now is almost inconceivable. 

From a very early period, torture was recognized as in- 
dispensable in all trials for sorcery and magic. In 358, an 
edict of Constantius decreed that no dignity of birth or sta- 
tion should protect those accused of such offences from its 

' Dissert. Mor. et Jurid. sur la Torture, pp. 36-7. 

2 Ibid. p. 169. 

3 Damhoud, Rer. Criminal. Prax. cap. 34, ^ 7. 



WITCHCRAFT. 49 1 

application in the severest form.^ How universal its employ- 
ment thus became is evident from a canon of the council^of 
Merida, in 666, declaring that priests, when sick, sometimes 
accused the slaves of their churches of bewitching them, and 
impiously tortured them against all ecclesiastical rules. ^ It 
was therefore natural that all such crimes should be regarded 
as peculiarly subjecting all suspected of them to the last ex- 
tremity of torture, and its use in the trials of witches and 
sorcerers came to be regarded as indispensable. 

The necessity which all men felt that these crimes should 
be extirpated with merciless severity, and the impalpable 
nature of the testimony on which the tribunals had mostly 
to depend, added to this traditional belief in the fitness of 
torture. Witchcraft was considered as peculiarly difficult of 
proof, and torture consequently became an unfailing resource 
to the puzzled tribunal, although every legal safeguard was 
refused to the wretched criminal, and the widest latitude of 
evidence was allowed. Bodin expressly declares that in so 
fearful a crime no rules of procedure were to be observed.^ 
Sons were admitted to testify against their fathers, and young 
girls were regarded as the best of witnesses against their 
mothers; the disrepute of a witness was no bar to the recep- 
tion of his testimony, and even children of irresponsible age 
were allowed to swear before they rightly knew the nature 
of the oath on which hung the life of a parent. Boguet, 
who presided over a tribunal in Franche Comte, in stating 
this rule relates a most pathetic case of his own in which a 

1 Const. 7 Cod. IX. xviii, 

2 Concil. Emeritan. ann. 666, can. xv. 

In the middle of the thirteenth century, the Emperor Theodore Lascaris 
invented a novel mode of torture in a case of this kind. When a noble 
lady of his court w^as accused of sorcery, he caused her to be inclosed 
naked in a sack v^ath. a number of cats. The suffering, though severe, 
failed to extort a confession. — Georg. Pachymeri Hist. Mich. Palaeol. Lib. 
I. cap. xii. 

3 Bodini de Magorum Doemonoman, Lib. iv. cap. 2. 



492 TORTURE. 

man named Guillaume Vuillermoz was convicted on the 
testimony of his son, aged twelve, and the hardened nerves 
of the judge were wrung at the despair of the unhappy 
prisoner on being confronted with his child, who persisted 
in his story with a callousness only to be explained by the 
will of God, who stifled in him all natural affection in order 
to bring to condign punishment this most hideous offence. 
Louise prints the records of a trial in 1662, wherein Philippe 
Polus was condemned on the evidence of his daughter, a 
child in her ninth year. There seems to have been no other 
proof against him, and according to her own testimony the 
girl had been a sorceress since her fourth year.^ Even ad- 
vocates and counsel could be forced to give evidence against 
their clients.^ Notwithstanding the ample resources thus 
afforded for conviction, Jacob Rickius, who, as a magistrate 
during an epidemic of witchcraft, at the close of the sixteenth 
century, had the fullest practical experience on the subject, 
complains that no reliance could be placed on legal witnesses 
to procure conviction;* and Del Rio only expresses the 
general opinion when he avers that torture is to be more 
readily resorted to in witchcraft than in other crimes, in 
consequence of the extreme difficulty of its proof.^ 

Even the wide-spread belief that Satan aided his worship- 
pers in their extremity by rendering them insensible to pain 
did not serve to relax the efforts of the extirpators of witch- 
craft, though they could hardly avoid the conclusion that 
they were punishing only the innocent, and allowing the 

1 Boguet, Discours des Sorciers, chap. Iv. (Lyon, 1610.) 

2 Louise, La Sorcellerie et la Justice Criminelle h Valenciennes. (Va- 
lenciennes, 1 86 1, pp. 133-64.) — For other similar instances see Bodin, 
op. cit. Lib. IV, Cap. i, 2. 

3 Bodin. Lib. I. cap. 2. 

4 Per legales testes hujus rei ad convincenduni fides certa haberi non 
potest. — Rickii Defens. Aquae Prolxie cap. ill. No. 117. 

^ Idque facilius in excepto et occulto difficilisque probationis crimine 
nostro sortilegii admiserim quam in aliis. — Disquisit. Magicar. Lib. V. 
Sect. iii. No. 8. 



WITCH-TRIALS. 493 

guilty to escape. Bogiiet, indeed, seems to recognize this 
practical inconsistency, ard, though it is permissible to use 
torture even duririg church festivals, he advises the judge not 
to have recourse to it because of its inutility.^ How little his 
advice was heeded, and how little the courts deemed them- 
selves able to dispense with torture, is shown in the charter of 
Hainault of 1619 where in these cases the tribunal is author- 
ized to employ it to ascertain the truth of the charge, or to 
discover accomplices, ox for any other purpose} In this di- 
lemma, various means were adopted to circumvent the arch- 
enemy, of which the one most generally resorted to was that 
of shaving the whole person carefully before applying the 
torture,^ a process which served as an excuse for ,the most 
indecent outrages upon femg.le prisoners. Yet notwithstand- 
ing all the precautions of the most experienced exorcists, we 
find in the bloody farce of Urbain Grandier that the fiercest 
torments left him in capital spirits and good humor.* Dam- 
houder relates at much length a curious case v/hich occurred 
under his own eyes while member of the council of Bruges, 
when he assisted at the torture of a reputed witch who had 
exercised her power only in good works. During three 

' Boguet, Instruction pour un juge en faict de Sorcelerie, art. xxxii. 

2 Soit pour ne trouver les delitz suffisament verifiez, ou pour savoir tous 
les complices, ou autrenient. — Chart, nouv. du Haynau, chap. 135, art. 
xxvi. (Louise, p. 94). 

3 Nicolas p. 145. The curious reader will find in Del Rio (Lib. v. 
Sect, ix.) ample details as to the aits of the Evil One to sustain his follow- 
ers against the pious efforts of the Inquisition. 

* " Q'apres qu'on eut lave ses jambes, qui avoient et§ dechires par la 
torture, et qu'on les eut presentees au feu pour y rapeller quelque peu 
d'esprits et de vigueur, il ne cessa pas de s'entretenir avec ses Gardes, par 
des discours peu serieux et pleins de railleries; qu'il mangea avec apetit 
et but avec plaisir trois ou quatre coups ; et qu'il ne repandit aucuns larmes 
en souffrant la question, ni apres 1' avoir souffert, lors meme qu'on I'exor- 
cisa de I'exorcisme des Magicians, et que I'Exorciste lui dit a plus de cinq- 
uanie reprises 'prsecipio ut si sis innocens effundas lachrymas.' " — Hist, 
des Diables de Loudon, pp. 157-8. 
42 



494 TORTURE. 

examinations, she bore the severest torture without shrinking, 
sometimes sleeping and sometimes defiantly snapping her 
fingers at her judges. At length, during the process of 
shaving, a slip of parchment covered with cabalistic charac- 
ters was found concealed in her person, and on its removal 
she was speedily brought to acknowledge her pact with the 
Evil One.^ The tender-hearted Rickius was so convinced of 
this source of uncertainty that he was accustomed to admin- 
ister the cold water ordeal to all the miserable old women 
brought before him on such charges, but he is careful to in- 
form us that this was only preparatory proof, to enable him 
with a safer conscience to torture those who were so ill- 
advised as to float instead of sinking.^ 

From the time when the Cappadocians of old were said to 
harden their children with torture in order that they might 
profitably follow the profession of false witnesses, there existed 
so general a belief among experienced men that criminals of 
all kinds had secrets with which to deaden sensibility to tor- 
ture that it is not improbable that the unfortunates occasion- 
ally were able to strengthen their endurance with some 
anaesthetic. Boguet complains that in modern times torture 
had become almost useless not only with sorcerers but with 
criminals in general, and Damhouder asserts that professional 
malefactors were in the habit of torturing each other in order 
to be hardened when brought to justice, in consequence of 
which he advises the judge to inquire into the antecedents of 
prisoners, in order to proportion the severity of the torture 
to the necessities of the case.^ 

When the concentrated energies of these ingenious and 
determined law dispensers failed to extort by such means a 
confession from the wretched clowns and gossips thus placed 

1 Rerum Crimin, Praxis Cap. xxxvii. No, 21, 22. Cf Bninnemann- 
de Inquisit. Process, cap. viii. Memb. v. No. 70. 

2 Rickii op. cit. cap. I. No. 24. 

3 Boguet, Instruction pour un juge, art. xxix. — Damhouderi Rer. Crim. 
Prax. cap. xxxviii. No. 19. 



WITCH-TRIALS. 495 

at their mercy, they were even yet not wholly at fault. The 
primitive teachings of the Inquisition of the thirteenth cen- 
tury were not yet obsolete; they were instructed to treat the 
prisoner kindly, and to introduce into his dungeon some 
prepossessing agent who should make friends with him and 
induce him to confess what was wanted of him, promising to 
influence the judge to pardon, when at that moment the 
judge is to enter the cell and to promise grace, with the 
mental reservation that his grace should be shown to the 
community and not to the prisoner.^ Or, still following the 
ancient traditions, spies were to be confined with him, who 
should profess to be likewise sorcerers and thus lead him to 
incriminate himself, or else the unhappy wretch was to be told 
that his associate prisoners had borne testimony against him, 
in order to induce him to revenge himself by turning witness 
against them.^ Boguet, indeed, does not consider it correct 
to mislead the accused with promises of pardon, and though 
it was generally approved by legists he decides against it.^ 
Simancas also considers such artifices to be illegal, and that 
a confession thus procured could be retracted.* Del Rio, on 
the other hand, while loftily condemning the outspoken 
trickery recommended by Sprenger and Bodin, proceeds to 
draw a careful distinction between dobuii bonum and dolum 
malum. He forbids absolute lying, but advises equivocation 
and ambiguous promises, and then, if the prisoner is deceived, 

• Sprenger Mall. Maleficar. P. in. q. xvi. — This was directly in con- 
tradiction to the precepts of the civil lawyers. Ippolito dei Marsigli says 
positively that a confession uttered in response to a promise of pardon 
cannot be used against the accused (Singularia, Venet, 1555, fol. 2>^b). 
The church however did not consider itself bound by the ordinary rules of 
law or morality. Marsigli in another passage (fol. 30 a) relates that 
Alexander III. once secretly promised a bishop that if he would publicly 
confess himself guilty of simony he should have a dispensation, and on 
the prelate's doing so, immediately deposed him. 

2 Bodin. Lib. iv, cap. I. 3 Boguet, Instruction, art. xxvii. 

* De Cathol, Instit. Tit. xiii. No. 12. 



496 TORTURE. 

he has only himself to thank for it.^ In fact, these men con- 
ceived that they were engaged in a direct and personal 
struggle with the Evil One, and that Satan could only be 
overcome with his own arts. 

When the law thus pitilessly turned all the chances against 
the victim, it is easy to understand that few escaped. In the 
existing condition of popular frenzy on the subject, there 
was no one but could feel that he might at any moment be 
brought under accusation by personal enemies or by unfortu- 
nates compelled on the rack to declare the names of all 
whom they might have seen congregated at the witches' 
sabbat. We can thus readily comprehend the feelings Of 
those who, living under such uncertainties, coolly and delibe- 
rately made up their minds in advance that, if chance should 
expose them to suspicion, they would at once admit every- 
thing that the inquisitors might desire of them, preferring a 
speedy death to one more lingering and scarcely less certain.^ 
The evil fostered with such careful exaggeration grew to so 
great proportions that Father Tanner speaks of the multitude 
of witches who were daily convicted through torture f and 
that this was no mere form of speech is evident when one 
judge, in a treatise on the subject, boasted of his zeal and 
experience in having dispatched within his single district 
nine hundred wretches in the space of fifteen years, and 
another trustworthy authority relates with pride that in the 
dioces of Como alone as many as a thousand had been 
burnt in a twelvemonth, while the annual average was over 
a hundred.* 

Were it not for the steady patronage bestowed on the 
system by the church, it would seem • strange that torture 
should invade the quiet and holy retirement of the cloister. 

' Disquisit. Magicar. Lib. v. Sect. x. 

2 Father Tanner states that he had this from learned and experienced 
men. — Tanneri Tract, de Proc. adv. Veneficas, Quoest. 11. Assert, iii. | 2. 

3 Ibid. Ice. cit. 4 Nicolas, p. 164. 



THE NORTHERN RACES. 497 

Its use, however, in monasteries was, if possible, even more 
arbitrary than in secular tribunals. Monks and nuns were 
exempt from the jurisdiction of the civil authorities, and 
were bound by vows of blind obedience to their superiors. 
The head of each convent thus was an autocrat, and when 
investigating the delinquencies of any of his flock, he was 
subjected to no limitations. Not only could he order the 
accused to be tortured at will, but the witnesses, whether 
male or female, were liable to the same treatment, with the 
exception that in the case of nuns it was recommended that 
the tortures employed should not be indecent or too severe 
for the fragility of the sex. As elsewhere, it was customary 
to commence the torment with the weakest of the witnesses 
or criminals.^ 



ENGLAND AND THE NORTHERN RACES. 

In this long history of legalized cruelty and wrong, the 
races of northern Europe are mostly exceptional. Yet it is 
somewhat remarkable that the first regular mediaeval code in 
which torture is admitted as a means of investigation is the 
one of all others in which it would be least expected. The 
earliest extant law of Iceland, the Gragas, which dates from 
1 1 19, has one or two indications of its existence, which are 
interesting as being purely autochthonic, and in no sense 
derivable, as in the rest of Europe, from the Roman law. 
The character of the people, indeed, and of their institutions 
would seem to be peculiarly incompatible with the use of 
torture, for almost all cases were submitted to inquests or 
juries of the vicinage, and, when this was unsuitable, resort 
was had to the ordeal. The indigenous origin of the custom, 
however, is shown by the fact that while it was used in but 
few matters, the most prominent class subjected to it was 
that of pregnant women, who have elsewhere been spared 

' Chabot, Encyclopedic Monastique, p. 426 (Paris, 1827). 
42"^ 



498 TORTURE. 

by the common consent of even the most pitiless legislators. 
An unmarried woman with child, who refused to name her 
seducer, could be forced to do so by moderate torments 
which should not break or discolor the skin.^ The object of 
this was to enable the family to obtain the fine from the 
seducer, and to save themselves the expense of supporting 
the child. When the mother confessed, however, additional 
evidence was required to convict the putative father. When 
the inhabitants of a district, also, refused to deliver. up a man 
claimed as an outlaw by another district, they were bound to 
torture him to ascertain the truth of the charge^ — a provision 
doubtless explicable by the important part occupied by out- 
lawry in all the schemes of Scandinavian legislation. These 
are the only instances in which it is permitted, while its oc- 
casional abuse is shown by a section providing punishment 
for its illegal employment.^ Slaves, moreover, under the 
Icelandic, as under other codes, had no protection at law, 
and were at the mercy of their masters.* These few indica- 
tions of the liability of freemen, however, disappear about 
the time when the rest of Europe was commencing to adopt 
the use of torture. In the "Jarnsida," or code compiled 
for Iceland by Hako Hakonsen of Norway, in 1258, there is 
no allusion whatever to its use. 

The Scandinavian nations, as a whole, did not admit tor- 
ture into their systems of jurisprudence. The institution of 
the jury in various forms was common to all, and where 
proof upon open trial was deficient, they allowed, until a 
comparatively recent date, the accused to clear himself by 
sacramental purgation. Thus, in the Danish laws of Wal- 
demarlL, to which the date of 1240 is generally assigned, 
there is a species of permanent jury, sandemend, as well as a 
temporary one, nefninge, and torture seems to have formed 

^ " Ita torquatur ut nee plagam referat nee eolor cutis liveseat." — 
Gragds, Festathattr eap. xxxiii. 

2 Ibid. Vigslothi eap. cxi. 3 Ibid. Vigslothi eap. Ixxxviii. 

* Schlegel Comment, ad Gragiis \ xxix. 



THE SCANDINAVIAN RACES. 499 

no part of judicial proceedings.^ This code was in force 
until 1683, when that of Christiern V. was promulgated. It 
is probable that the employment of torture may have crept 
in from Germany, without being regularly sanctioned, for 
we find Christiern forbidding its use except in cases of high 
treason, where the magnitude of the offence seems to him to 
justify the infraction of the general rule. He, however, en- 
couraged one of its greatest abuses in permitting it on crimi- 
nals condemned to death. '-^ 

Among the kindred Frisians the tendency was the same. 
Their code of 1323 is a faithful transcript of the primitive 
Barbarian jurisprudence. It contains no allusions to torture, 
and as all crimes, except theft, were still compounded for 
with wer-gilds, it may reasonably be assumed that the ex- 
tortion of confession was not recognized as a judicial expe- 
dient.^ 

So, in Sweden, the code of Raguald, compiled in 1441 
and in force until 1614, during a period in which torture 
flourished in almost every European state, has no place for 
it. Trials are conducted before twelve nempdarii, or jury- 
men, and in doubtful cases the accused is directed to clear 
himself by oath or by conjurators. For atrocious crimes the 
punishments are severe, such as the wheel or the stake, but 
inflictions like these are reserved for the condemned.* Into 
these distant regions the Roman jurisprudence penetrated 

' Legg. Cimbric. Woldemari Lib. 11. cap i,, xl. (Ed. Ancher, Hafnise, 

1783). _ 

2 Christiani V. Jur. Danic. Lib. i. cap. xx. (Ed. Wegliorst, Hafnise, 
1698.) 

Senckenberg (Corp. Jur. German. T. I. Prsef. p. Ixxxvi.) gives the 
chapter heads of a code in Danish, the Keyser Retenn, furnished to liim 
by Ancher, in which cap. iv. and v. contain directions as to the adminis- 
tration of torture. The code is a mixture of German, civil, and local law, 
and probably was in force in some of the Germanic provinces of Denmark. 

3 Legg. Opstalbomica; ann. 1323 [ap. Gartner, Saxonum Leges Tres. 
Lipsise 1730). 

4 Raguald. Ingermund. Leg. Suecor., Stockholmioe, 1623. 



500 TORTURE. 

slowly, and the jury trial was an elastic institution which 
adapted itself to all cases. 

To the same causes may be attributed the absence of tor- 
ture from the Common Law of England. In common with 
the other Barbarian races, the Anglo-Saxons solved all 
doubtful questions by the ordeal and wager of law, and in 
the collection known as the laws of Henry I. a principle is 
laid down which is incompatible with the whole theory of 
torture, whether used to extract confession or evidence. A 
confession obtained by fear or fraud is pronounced invalid, 
and no one who has confessed his own crime is to be be- 
lieved with respect to that of another.^ Such a principle, 
combined with the gradual growth of the trial by jury, 
doubtless preserved the law from the contamination of in- 
quisitorial procedure, though, as we have seen, torture was 
extensively employed for purposes of extortion by marauders 
and lawless nobles during periods of civil commotion. 
Glanville makes no allusion to it, and though Bracton shows 
a wide acquaintance with the revived Roman jurisprudence, 
and makes extensive use of it in all matters where it could 
be advantageously harmonized with existing institutions, he 
is careful to abstain from introducing torture into criminal 
procedure.^ A clause in Magna Charta, indeed, has been 

1 LI. Henrici I. cap, v. ^ i6. 

A curious disregard of this principle occurs in the Welsh laws, which 
provide that when a thief is at the gallows, with the certainty of being 
hanged, his testimony as to his accomplices is to be received as sufficient 
without requiring it to be sworn to on a relic — the insei^arable condition of 
all other evidence. By a singular inconsistency, however, the accomplice 
thus convicted was not to be hanged but to be sold as a slave. — Dimelian 
Code, Bk. ii. ch. v. ^ 9. (Owen I. 425). 

2 Many interesting details on the influence of the Roman law upon that 
of England will be found in the learned work of Carl GUterbock, " Brac- 
ton and his Relation to the Roman Law," recently translated by Brinton 
Coxe (Philadelphia, 1866). The subject is one which well deserves a 



ENGLAND — THE COMMON LAW. 50I 

held by high authority to inhibit the employment of torture, 
but it has no direct allusion to the subject, which was not a 
living question at the time, and was probably not thought of 
by any of the parties to that transaction.^ In fact, the whole 
spirit of English law was irreconcilable with the fundamental 
principles of the inquisitorial process. When the accused 
was brought before court, he was, it is true, required to 
appear ungirdled, without boots, or cap, or cloak, to show 
his humility, but it is expressly directed that he shall not be 
chained, lest his fetters should embarrass his self-possession 
in his defence, and he was not to be forced in any Avay to 
state anything but of his own free will.^ Men who could 

more thorough consideration than it is likely to receive at the hands of 
English writers. 

It is curious to observe that the crimen Iccsce niajestatis makes its appear- 
ance in Bracton (Lib. ill. Tract, ii. cap. 3, § i) about the middle of the 
thirteenth century, earlier than in France, where, as we have seen, the 
first allusion to it occurs in 13 15. This was hardly to be expected, when 
Ave consider the widely different influences exerted upon the jurisprudence 
of the two countries by the Roman law. 

' The passage which has been relied on by lawyers is chap. xxx. : 
" Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utla- 
getur, aut aliquo modo destruatur; nee super eum ibimus, nee super eum 
mittemus, nisi per legale judicium parium suorum, vel per legem terroe." 
If the law just above quoted from the collection of Henry I. could be 
supposed to be still in force under John, then this might possibly be im- 
agined to bear some reference to it ; but it is evident that had torture been 
an existing grievance, such as outlawry, seizure, and imprisonment, the 
barons would have been careful to include it in their enumeration of re- 
striciions. Moreover, Magna Charta was specially directed to curtail the 
royal prerogative, and at a later period was not held by any one to inter- 
fere with that prerogative whenever the king desired to test with the rack 
the endurance of his loving subjects. 

2 Et come ascuns felons viendrount en Jugement respondre de lour fe- 
lonie, volons que ils viegnent dechausses et descients sauns coiffe, et a 
teste descouverte, en pure lour cote hors de fers et de chescun manere de 
liens, issint que la peine ne lour toille nule manere de rason, selon par 
force ne lour estouva mye respondre forsque lour fraunche volunte. — 
Britton, chap. v. 



502 TORTURE. 

frame legal maxims so honorable to their sense of justice and 
so far in advance of the received notions of their age could 
evidently have nothing in common with the principles which 
placed the main reliance of the law on confession to be 
wrung from the lips of an unfortunate wretch who was sys- 
tematically deprived of all support and assistance. To do 
so, in fact, is classed with homicide by a legal writer of the 
period/ but that it was occasionally practised is shown by 
his giving a form for the aj^peal of homicide against judges 
guilty of it.'^ 

Under the common law, therefore, torture had properly 
no existence in England, and in spite of occasional efforts on 
the part of the Plantagenets^ the character of the national 
institutions kept at bay the absorbing and centralizing influ- 
ences of the Roman law.* Yet their wide acceptance in 
France, and their attractiveness to those who desired to wield 
absolute authority, gradually accustomed the crown and the 
crown lawyers to the idea that torture could be administered 
by order of the sovereign. Sir John Fortescue, who was 
Lord Chancellor under Henry VI., inveighs at great length 

1 Per volunte aussi se fait ceste pesche [homicide] si come per ceux qui 
painent home taut que il est gehist pur avouer pesche mortelment. — Home, 
The Myrror of Justice, cap. I. sect. viii. — See also Fleta, Lib. i. cap. 
XX vi. ^ 5. 

2 Ou faussement judgea Raginald .... ouissint; tant luy penia pur 
luy faire conoistre, approver que il se conoist faussement aver pesche ou 
nient ne pescha. — Home, cap. II. sect. xv. 

3 Pike (Hist, of Crime in England I. 427) quotes a document of 1189 
which seems indirectly to show that torture could be inflicted under an 
order of the king. The expression is somewhat doubtful, and as torture 
had not yet established itself anywhere in Europe as a judicial procedure 
the document alleged can hardly be received as evidence of its legality. 

■* See Fortescue de Laud. Legg. Angliee, cap, xxxiii. — The jealousy 
with which all attempted encroachments of the Roman law were repelled 
is manifested in a declaration of Parliament in 1388. " Que ce i-oyalme 
d'Engleterre n'estait devant ces heures, ne a I'entent du roy nostre dit 
seignior et seigniors du parlement unque ne serra rule ne governe par la 
leycivill." — Rot. Pari,, ii Ric. II. (Selden's Note to Fortescue, loc, cit.) 



ENGLAND THE ROYAL PREROGATIVE. 503 

against the French law for its cruel procedures, and with 
much satisfaction contrasts it with the English practice/ and 
yet he does not deny that torture was occasionally used in 
England. Indeed, his fervent arguments against the system, 
addressed to Prince Edward, indicate an anxiety to combat 
and resist the spread of civil law doctrines on the subject, 
which doubtless were favored by the influence of Margaret 
of Anjou. An instance of its application in 1468 has, in fact, 
been recorded, which resulted in the execution of Sir Thomas 
Coke, Lord Mayor of London;^ and in 1485, Innocent 
VIII. remonstrated with Henry VII. respecting some pro- 
ceedings against ecclesiastics who were scourged, tortured, 
and hanged.^ 

Under Henry VIII. and his children, the power of the 
crown was largely extended, and the doctrine became fash- 
ionable that, though under the law no one could be tortured 
for confession or evidence, yet outside and above the law the 
royal prerogative was supreme, and that a warrant from the 
King in Privy Council fully justified the use of the rack and 
the introduction of the secret inquisitorial process, with all 
its attendant cruelty and injustice. It is difficult to conceive 
the subserviency which could reconcile men, bred in the 
open and manly justice of the common law, to a system so 
subversive of all the principles in which they had been 
trained. Yet the loftiest names of the profession were con- 
cerned in transactions which they knew to be in contraven- 
tion of the laws of the land. 

Sir Thomas Smith, one of the ornaments of the Eliza- 
bethan bar, condemned the practice as not only illegal, but 
illogical. "Torment or question, which is used by order 

' De Laudibus Legum Anglise, cap. xxii. 

2 See Jardine's " Reading on the Use of Torture in the Criminal Law 
of England," p. 7 (London, 1837), a condensed and sufficiently complete 
account of the subject under the Tudors and- -Stuarts. 

3 Partim tormentis subjecti, partim crudelissime laniati, et partim etiam 
furca suspensi fuerant. — Wilkins Concil. IIL 617. 



504 TORTURE. . 

of the civile law and custome of other countries, .... is 
not used in England. . . . The nature of Englishmen is 
to neglect death, to abide no torment; and therefore hee 
will confesse rather to have done anything, yea, to have 
killed his owne father, than to suffer torment." And yet, a 
few years later, we find the same Sir Thomas writing to Lord 
Burghley, in 15 71, respecting two miserable wretches whom 
he was engaged in racking under a warrant from Queen 
Elizabeth.^ 

In like manner. Sir Edward Coke, in his Institutes, de- 
clares — ''So, as there is no law to warrant tortures in this 
land, nor can they be justified by any prescription, being so 
lately brought in." Yet, in 1603, there is a warrant ad- 
dressed to Coke and Fleming, as Attorney and Solicitor 
General, directing them to apply torture to a servant of 
Lord Hundsdon, who had been guilty of some idle speeches 
respecting King James, and the resultant confession is in 
Coke's handwriting, showing that he personally superin- 
tended the examination.^ 

Coke's great rival. Lord Bacon, was as subservient as his 
contemporaries. In 16 19, while Chancellor, we find him 
writing to King James concerning a prisoner confined in the 
Tower on suspicion of treason — "If it may not be done 
otherwise, it is fit Peacock be put to torture. He deserveth 
it as well as Peacham did" — Peacham being an unfortunate 
parson in whose desk was found a MS. sermon, never 
preached, containing some unpalatable reflections on the 
royal prerogative, which the prerogative resented by putting 
him on the rack.^ 

As in other countries, so in England, when torture was 
once introduced, it rapidly broke the bounds which the 
prudence of the Roman lawgivers had established for it. 

' Jardine, op. cit. pp. 8-9, 24-5. It is due to Sir Thomas to add that 
he earnestly begs Lord Burgkley to release him from so uncongenial an 
employment. 

2 Ibid. pp. 8, 47. 3 Bacon's Works, Philadelphia, 1846, III. 126. 



ENGLAND THE ROYAL PREROGATIVE. 505 

Treason was a most elastic crime, as was shown in 1553 by 
its serving as an excuse for the torture of one Stonyng, a 
prisoner in the Marshalsea, because he had transcribed for 
the amusement of his fellow-captives a satirical description 
of Philip 11. , whose marriage with Queen Mary was then 
under contemplation.^ But it was not only in cases of high 
treason that the royal prerogative was allowed to transgress 
the limits of the law. Matters of religion, indeed, in those 
times of perennial change, when dynasties depended on dog- 
maS; might come under the comprehensive head of construc- 
tive treason, and be considered to justify the torture even of 
women, as in the instance of Ann Askew in 1546;^ and of 
monks guilty of no other crime than the endeavor to pre- 
serve their monasteries by pretended miracles;^ but numerous 
cases of its use are on record, which no ingenuity can remove 
from the sphere of the most ordinary criminal business. 
Suspicion of theft, murder, horse-stealing, embezzlement, 
and other similar offences was sufficient to consign the un- 
fortunate accused to the tender mercies of the rack, the Sca- 
venger's Daughter,* and the manacles, when the aggrieved 

1 Strype's Eccles. Memorials, III. loi. 

2 Burnet, Hist. Reform. Bk. iii. pp. 341-2. 

3 According to Nicander Nucius (Travels, Camden Soc, 1841, pp. 58, 
62) the investigation of these deceptions with the severest tortures, Sa^avoi^ 
a-popnToi?, was apparently the ordinary mode of procedure. 

'^ Sir William Skevington, a lieutenant of the Tower, under Henry 
VHI , immortalized himself by reviving an old implement of torture, 
consisting of an iron hoop, in which the prisoner was bent, heels to hams 
and chest to knees, and was thus crushed together unmeixifuUy. It ob- 
tained the nickname of Skevington's Daughter,, corrupted in time to Sca- 
venger's Daughter. Among other sufferers from its embraces was an un- 
lucky Irishman, named Myagh, whose plaint, engraved on the wall of his 
dungeon, is still among the curiosities of the Tower : — 

" Thomas Miagh, which liethe here alone, 
That fayne wold from hens begon : 
By torture straunge mi truth was tryed. 
Yet of my libertie denied. 

1581. Thomas Myagh."— Jardine, op. cit. pp. 15, 30. 
43 



5o6 TORTURE. 

person had influence enough to procure a royal warrant ; 
nor were these proceedings confined to the secret dungeons 
of the Tower, for the records show that torture began to be 
habitually applied in the Bridewell. Jardine, however, states 
that this especially dangerous extension of the abuse ap- 
pears to have ceased with the death of Elizabeth, and that 
no trace of the torture even of political prisoners can be 
found later than the year 1640.^ The royal prerogative had 
begun to be too severely questioned to render such manifesta- 
tions of it prudent, and the Great Rebellion finally settled 
the constitutional rights of the subject on too secure a basis 
for even the time-serving statesmen of the Restoration to 
venture on a renewal of the former practice. Yet how 
nearly, at one time, it had come to be engrafted on the law 
of the land is evident from its being sufficiently recognized 
as a legal procedure for persons of noble blood to claim im- 
munity from it, and for the judges to admit that claim as a 
special privilege. In the Countess of Shrewsbury's case, the 
judges, among whom was Sir Edward Coke, declared that 
there was a '* privilege which the law gives for the honor 
and reverence of the nobility, that their bodies are not sub- 
ject to torture in causa criminis lessee- majestatis f and no in- 
stance is on record to disprove the assertion.^ 

In one class of offences, however, torture was frequently 
used to a later date, and without requiring the royal inter- 
vention. As on the Continent, sorcery and witchcraft were 
regarded as crimes of such peculiar atrocity, and the aversion 
they excited was so universal and intense, that those accused 
of them were practically placed beyond the pale of the law, 
and no means were considered too severe to secure the con- 
viction which in many cases could only be obtained by con- 
fession. We have seen that among the refinements of Italian 
torture, the deprivation of sleep for forty hours was consid- 
ered by the most experienced authorities on the subject to be 

' Jardine, pp. 53, 57-8. 2 Qp. cit. p. 65. 



WITCH-TRIALS IN GREAT BRITAIN. 507 

second to none in severity and effectiveness. It neither 
lacerated the flesh, dislocated the joints, nor broke the 
bones, and yet few things could be conceived as more likely 
to cloud the intellect, break down the will, and reduce the 
prisoner into a frame of mind in which he would be ready to 
admit anything that the questions of his examiners might 
suggest to him. In English witch-trials, this method of tor- 
ture was not infrequently resorted to, without the limitation 
of time to which it was restricted by the more experienced 
jurists of Italy. ^ 

Another form of torture used in Great Britain, which 
doubtless proved exceedingly efficacious, was the ''prick- 
ing" adopted to discover the insensible spot, which, accord- 
ing to popular belief, was .one of the invariable signs of a 
witch. There were even professional " prickers" who were 
called in as experts in the witch-trials, and who thrust long 
pins into the body of the accused until some result, either 
negative or positive, was obtained.^ Thus at the prosecution 
of Janet Barker, in Edinburgh, in 1643, it is recorded that 
" she had the usual mark on the left shoulder, which enabled 
one James Scober, a skilful pricker of witches, to find her 
out by putting a large pin into it, which she never felt."^ 
One witch pricker, named Kincaid, used to strip his victims, 
bind them hand and foot, and then thrust his pins into every 
part of their bodies, until, exhausted and rendered speechless 

' Lecky, Hist, of Rationalism, Am. ed. I. 122. — In his very interesting 
work, Mr. Lecky mentions a case, occurring under the Commonwealth, 
of an aged clergyman named Lowes, who, after an irreproachable pastorate 
of fifty years, fell under suspicion. " The unhappy old man was kept 
awake for several successive nights, and persecuted ' till he was weary of 
his life, and was scarcely sensible of what he said or did.' He was then 
thrown into the water, condemned, and hung." — Idt'd. p. 126, 

2 Cobbett's State Trials, VL 686. — Although ostensibly not used to ex- 
tort confession, this pricking was practically regarded as a torture. Thus 
in 1677 the Privy Council of Scotland "found that they (z. <?., the inferior 
magistracy) might not use any torture by pricking or by withholding them 
from sleep" (loc. cit.). 

3 Spottiswoode Miscellany, Edinbui-gh, 1845, H- 67. 



508 TORTURE. 

by the torture, they failed to scream, when he would tri- 
umphantly proclaim that he had found the witch -mark. 
Another pricker confessed on the gallows that he had ille- 
gally caused the death of a- hundred and twenty women whom 
he had thus pricked for witchcraft.^ 

In Scotland, torture, as a regular form of judicial investi- 
gation, was of late introduction. In the various codes col- 
lected by Skene, extending from an early period to the com- 
mencement of the fifteenth century, there is no allusion 
whatever to it. In the last of these codes, adopted under 
Robert III., by the Parliament of Scotland in 1400, the pro- 
visions respecting the wager of battle show that torture would 
have been superfluous as a means of supplementing deficient 
evidence.^ The influence of the Roman law, however, though 
late in appearing, was eventually much more deeply felt in 
Scotland than in the sister kingdom, and consequently tor- 
ture at length came to be regarded as an ordinary resource 
in doubtful cases. In the witch persecutions, especially, 
which in Scotland rivalled the worst excesses of the Inquisi- 
tion of Italy and Spain, it was carried to a pitch of fright- 
ful cruelty which far transcended the limits assigned to it 
elsewhere. Thus the vigils, which we have seen consisted 
simply in keeping the accused awake for forty hours by the 
simplest modes, in Scotland were fearfully aggravated by a 
witch-bridle, a band of iron fastened around the face, with 
four diverging points thrust into the mouth. With this the 
accused was secured immovably to a wall, and cases are on 
record in which this insupportable torment was prolonged 
for five and even for nine days. In other cases an enormous 
weight of iron hoops and chains, amounting to twenty five 
or thirty stone, would be accumulated on the body of the 
patient.-^ Indeed, it is difficult to believe that the accounts 
which have been preserved to us of these terrible scenes are 

1 Rogers' Scotland, Social and Domestic, p. 266. 

2 Statut. Robert! III. cap. xvi. (Skene). 

3 Lecky, op. cit. I. 145-6. — Rogers, op. cit. pp. 267-3CO. 



WITCH-TRIALS IN SCOTLAND. 509 

not exaggerated. No cruelty is too great for the conscien- 
tious persecutor who believes that he is avenging his God, 
but the limitless capacity of human nature for inflicting is not 
complemented by a limidess capacity of endurance on the 
part of the victim ; and well authenticated as the accounts of 
the Scottish witch-trials may be, they seem to transcend the 
possibility of human strength.^ In another respect these 
witch-trials were marked with a peculiar atrocity. Else- 
where, as we have seen, confession was requisite for con- 
demnation, thus affording some color of excuse for torture. 
In Scotland, however, the testimony of the pricker was suffi- 
cient, and torture thus became a wanton and cruel surplusage, 
rendered the less defensible in that the poor wretch who 
yielded to the torment and confessed was rewarded by being 
mercifully strangled before being burnt, while those who held 
out under torture were condemned and burnt alive. ^ 

i 

1 I quote from Mr, Lecky (p. 147), who gives as his authority "Pit- 
cairn's Criminal Trials of Scotland." 

" But others and perhaps worse trials were in reserve. The three prin- 
cipal that were habitually applied were the penniwinkis, the boots, and the 
caschielawis. The first was a kind of thumbscrew ; the second was a frame 
in which the leg was inserted, and in which it was broken by wedges driven 
in by a hammer; the third was also an iron frame for the leg, which was 
from time to time heated over a brazier. Fire matches were sometimes 
applied to the body of the victim. We read, in a contemporary legal re- 
gister, of one man who was kept for forty-eight hours in ' vehement tortour' 
in the caschielawis; and of another who remained in the same frightful 
machine for eleven days and eleven nights, whose legs- were broken daily 
for fourteen days in the boots, and who was so scourged that the whole 
skin was torn from his body," These cases occurred in 1596. 

These horrors are almost equalled by those of another trial in which a 
Dr, Fian was accused of having caused the storms which endangered the 
voyage of James I, from Denmark in 1590. James personally superin- 
tended the torturing of the unhappy wretch, and after exhausting all the 
torments known to the skill and experience of the executioners, he invented 
new ones. All were vain, however, and the victirh was finally burnt with- 
out confessing his ill-deeds. {^Ibid. p, 123,) 

2 Rogers, op, cit, p, 307. 

43* 



510 TORTURE. 

Torture thus maintained its place in the law of Scotland 
as long as the kingdom preserved the right of self-legislation, 
though an attempt seems to have been made to repress it 
during the temporary union with England under the Com- 
monwealth. In 1652, when the English Commissioners for 
the administration of justice sat in Edinburgh, among other 
criminals brought before them were two witches who had 
confessed their guilt before the Kirk. They were the re- 
mains of a party of six, four of whom had died under the 
tortures employed to procure confession — such as hanging 
by the thumbs tied behind the back, scourging, burning the 
feet and head and putting lighted candles into their mouths, 
clothing them in hair-cloth soaked in vinegar ''to fetch off 
the skin," &c. Another woman was stripped naked, laid 
on a cold stone with a hair-cloth over her, and thus kept for 
twenty-eight days and nights, being fed on bread and water. 
The diarist who records this adds that " The judges are re- 
solved to inquire into the business, and have appointed the 
sheriff, ministers, and tormentors to be found out, and to 
have an account of the ground of this cruelty."^ What re- 
sult their humane efforts obtained in this particular instance 
I have not been able to ascertain, but the legal administra- 
tion of torture was not abolished until after the Union, when, 
in 1709, the United Parliament made haste, at its second 
session, to pass an act. for '' improving the Union," by which 
it was done away with.-^ Yet the spirit which had led to its 

' Diurnal of Occurrences in Scotland. (SpoUiswoode Miscellany, II. 
90-91.) 

2 7 Anne c. 21. — While thus legislating for the enlightenment of Scot- 
land, the English majority took care to retain the equally barbarous prac- 
tice of \h& peme fo7'ie et dure which had been introduced under the Stuarts, 
in defiance of the principles of the Common Law (see Fleta, Lib. I. cap. 
xxxii. \ 33, also, Home's Myrror of Justice, cap. I. sect. viii.). This was 
not strictly a torture for investigation, but a punishment, which was in- 
flicted on those who refused to plead either guilty or not guilty. After its 
commencement, the unfortunate wretch was not allowed to plead, but was 
kept under the press until death, " donee oneris, frigoris atque famis cru- 



DECLINE OF THE TORTURE SYSTEM. 51I 

abuse could not be repressed by Act of Parliament, and a 
case is on record, occurring in 1722, when a poor old woman 
in her dotage, condemned to be burnt as a witch, actually- 
warmed her withered hands at the stake lighted for her de- 
^ruction, and mumbled out her gladness at enjoying the 
unaccustomed warmth.^ 



DECLINE OF THE TORTURE SYSTEM. 

A system of procedure which entailed results so deplorable 
as those which we have seen accompany it everywhere, could 
scarcely fail to arouse the opposition of thinking men who 
were not swayed by reverence for precedent or carried 
away by popular impulses. Accordingly, an occasional 
voice was raised in denunciation of the use of torture. The 
Spaniard, Juan Luis Vives, one of the profoundest scholars of 
the sixteenth century, condemned it as useless and inhuman,^ 
The sceptic of the period, Montaigne, was too cool and 
clear-headed not to appreciate the vicious principle on which 
it was based, and he did not hesitate to stamp it with his 
reprobation. ''To tell the truth, it is a means full of un- 
certainty and danger ; what would we not say, what would 
we not do to escape suffering so poignant? whence it hap- 
pens that when a judge tortures a prisoner for the purpose of 
not putting an innocent man to death, he puts him to death 

both innocent and tortured Are you not unjust 

when, to save him from being killed, you do worse than kill 

ciatu extinguitur." — See Hale, Placit. Coron. c. xliii. This relic of 
modern barbarism was not abolished until 1772, by 12 Geo. III. c, 20. The 
only case of its employment in America is said to have been that of Giles 
Cory, in 1 692, during the witchcraft epidemic. Knowing the hopelessness 
of the trials, he refused to plead, and was duly pressed to death. (Cob- 
bett's State Trials, VI. 680.) 

' Rogers, op cit. p. 301. 

2 His arguments are quoted and controverted by Simancas, Bishop of 
Badajos, in his Cathol. Institut. Tit. Lxv. No, 7, 8. 



512 TORTURE. 

him?"^ In 1624, the learned Johann Graefe, in his ^'Tri- 
bunal Reformatum," argued forcibly in favor of its abolition, 
having had, it is said, practical experience of its horrors 
during his persecution for Arminianism by the Calvinists of 
Holland, and his book attracted sufficient attention to be re- 
peatedly reprinted.^ Friedrich Keller, in 1657, at the Uni- 
versity of Strasbourg, presented a well- reasoned thesis urging 
its disuse, which was reprinted in 1688, although the title 
which he prefixed to it shows that he scarce dared to assume 
the responsibility for its unpopular doctrines.^ When the 
French Ordonnance of 1670 was in preparation, various 
magistrates of the highest character and largest experience 
gave it as their fixed opinion that torture was useless, that it 
rarely succeeded in eliciting the truth from the accused, and 
that it ought to be abolished.* Towards the close of the 
century, various writers took up the question. The best 
known of these was perhaps Augustin Nicolas, who has been 
frequently referred to above, and who argued with more zeal 
and learning than skill against the whole system, but espe- 
cially against it as applied in cases of witchcraft.^ In 1692, 
von Boden, in a work alluded to in the preceding pages, 

' Essais, Liv. II. chap. v. — This passage is little more than a plagiarism 
on St. Augustine, de Civ. Dei Lib. Xix. cap. vi. — Montaigne further il- 
lustrates his position by a story from Froissart (Liv. iv. ch. Iviii.), v\^ho 
relates that an old woman complained to Bajazet that a soldier had for- 
aged on her. The Turk summarily disposed of the soldier's denial by 
causing his stomach to be opened. He proved guilty — but what had he 
been found innocent? 

2 Bayle, Diet. Hist. s. v. Grevius. — Gerstlacheri Comment, de Quoest. 
per Torment. Francof. 1753, pp. 25-6. 

3 Frid. Kelleri Paradoxon de Tortura in Christ. Repub. non exercenda. 
Reimp. Jense 1688. 

4 Declaration du 24 Aout, 1780 (Isambert, XXVH. 374). 

5 Nicolas is careful to assert his entire belief in the existence of sorcery 
and his sincere desire for its punishment, and he is indignant at the popular 
feeling which stigmatized those who wished for a reform in procedure as 
" avocats des sorciers." 



DISCUSSION IN THE SCHOOLS. 513 

inveighed against its abuses, while admitting its utility in 
many classes of crimes. Bayle, not long after, in his Dic- 
tionary, condemned it in his usual indirect and suggestive 
manner.^ In 1705, at the University of Halle, Martin Bern- 
hardi of Pomerania, a candidate for the doctorate, in his 
inaugural thesis, argued with much vigor in favor of abolish- 
ing it, and the dean of the faculty, Christian Thomas, acknow- 
ledged the validity of his reasoning, though expressing doubts 
as to the practicability of a sudden reform. Bernhardi states 
that in his time it was no longer employed in Holland, and 
its disuse in Utrecht he attributes to a case in which a thief 
procured the execution, after due torture and confession, of 
a shoemaker, against whom he had brought a false charge in 
revenge for the refusal of a pair of boots. ^ His assertion, 
however, is too general, for it was not until the formation of 
the Republic of the Netherlands, in 1798, that it was formally 
abolished."^ 

These efforts had little effect, but they manifest the pro- 
gress of enlightenment, and doubtless paved the way for 
change, especially in the Prussian territories. Yet, in 1730, 
we find the learned Baron Senckenberg reproducing Zanger's 
treatise, not as an archaeological curiosity, but as a practical 
text-book for the guidance of lawyers and judges. Mean- 
while the propriety of the system continued to be a subject 

1 Diet. Histor. s. v. Grevius. 

2 Bernhardi Diss. Inaug. eap. ii. ^^ iv., x. — Bernhardi ventured on the 
use of very decided language in denunciation of the system. — " Injustam, 
iniquam, fallacem, insignium malorum promotricem, et denique omni divini 
testimonii specie destitutam esse hanc violentam torturam et proinde ex 
foris Christianorum rejiciendam intrepide assero." (Ibid, cap, i. ^ i.) 

3 Meyer, Institutions Judiciaires, IV. 297. Even then, however, the in- 
quisitorial process was not abolished, and criminal procedure continued to 
be secret. For the rack and strappado were substituted prolonged impri- 
sonment and other expedients to extort confession ; and in 1803 direct tor- 
ture was used in the case of Hendrik Janssen, executed in Amsterdam on 
the strength of a confession extracted from him with the aid of a bull's 
pizzle. 



514 TORTURE. 

of discussion in the schools, with ample expenditure of learn- 
ing on both sides. ^ In 1733, ^^ Leipzig, Moritz August 
Engel read a thesis, which called forth much applause, in 
which he undertook to defend the use of torture against the 
dictum of Christian Thomas nearly thirty years before.^ 
The argument employed is based on the theory of the crimi- 
nal jurisprudence of the time, in which the guilt of the ac- 
cused is taken for granted and the burden thrown upon him 
of proving himself innocent. Engel declares that in all well- 
ordered states torture is rightfully employed ; those who are 
innocent and are the victims of suspicious circumstances have 
only themselves to blame for their imprudence, and must 
make allowance for the imperfections of human reason ; and 
he airily disposes of the injustice of the system by declaring 
that the state need not care if an innocent man is occasionally 
tortured, for no human ordinance can be expected to be 
free from occasional drawbacks. Another disputant on the 
same side meets the argument, that the different sensibilities 
of individuals rendered torture uncertain, by boasting that 
in the Duchy of Zerbst the executioner had invented an in- 
strument which. would wring a confession out of the most 
hardened and robust.^ It was shortly after this, however, 
that the process of reform began in earnest. Frederic the 
Great succeeded to the throne of Prussia, May 31, 1740. 
Few of his projects of universal philanthropy and philosophi- 
cal regeneration of human nature survived the hardening ex- 
periences of royal ambition, but, while his power was yet in 
its first bloom, he made haste to get rid of this relic of un- 
reasoning cruelty. It was almost his earliest official act, for 

' An enumeration of the opponents of torture may be found in Gerst- 
lacher's Comment, de Quaest. per Tormenta, pp. 24-30, and Werner's 
Dissert, de Tortura Testium, pp. 28-31. 

2 M. A. Engel de Tortura ex Foris Christ, non proscribenda. Lipsioe, 

1733- 

3 Jo. Frid. Werner Dissert, de Tortura Testium, Erford. 1724. Reimpr. , 
Lipsise, 1742. 



ABOLITION IN GERMANY. 515 

the cabinet order abolishing torture is dated June 3d.^ Yet 
even Frederic could not absolutely shake off the traditional 
belief in its necessity when the safety of the State or of the 
head of the State was concerned. Treason and rebellion 
and some other atrocious crimes were excepted from the 
reform ; and in 1752, at the instance of his high chancellor, 
Cocceji, by a special rescript, he ordered two citizens of 
Oschersleben to be tortured on suspicion of robbery.^ 
With singular inconsistency, moreover, torture in a modified 
form was long permitted in Prussia, not precisely as a means 
of investigation, but as a sort of punishment for obdurate 
prisoners who would not confess, and as a means of marking 
them for subsequent recognition.^ It is evident that the ab- 
rogation of torture did not carry with it the removal of the 
evils of the inquisitorial process. 

When the royal philosopher of Europe thus halted in the 
reform, it is not singular that his example did not put an end 
to the controversy as to the abolition of torture elsewhere. 
German jurisprudence in fact was not provided with substi- 
tutes, and legists trained in the inquisitorial process might 
well hesitate to abandon a system with which they were fa- 
miliar in order to enter upon a region of untried experiment 
for which there was no provision in the institutions or the 
ancestral customs of the land. These natural doubts are 
well expressed by Gerstlacher, who, in 1753, published a 
temperate and argumentative defence of torture. He enu- 
merates the substitutes which had been proposed by his op- 
ponents, and if he does them no injustice, the judges of the 
day might naturally feel indisposed to experiments so crude 
and illogical. It seems that the alternatives offered for the 
decision of cases in which the accused could not be convicted 
by external evidence reduced themselves to four — to dismiss 

1 Carlyle, Hist. Friedricli II. Book xi. ch. i. 

2 I find this statement in an account by G. F. Giinther (Lipsise, 1838) 
of the abolition of torture in Saxony. 

^ Giinther, op. cit. 



5l6 TORTURE. 

him without a sentence either of acquittal or conviction, to 
make him take an oath of purgation, to give him an extra- 
ordinary (that is to say, a less) penalty than that provided 
for the crime, and, lastly, to imprison him or send him to 
the galleys or other hard labor, proportioned to the degree 
of the evidence against him, until he should confess.^ 

In Saxony, as early as 1714, an Electoral Rescript had re- 
stricted jurisdiction over torture to the magistrates of Leipzig, 
to whom all proceedings in criminal prosecutions had to be 
submitted for examination before they could confirm the de- 
cision of the local tribunals to employ it.^ This must have 
greatly reduced the amount of wrong and suffering caused 
by the system, and thus modified- it continued to exist until, 
in the remodelling of the Saxon criminal law, between 1770 
and 1783, the whole apparatus of torture was swept away. 
In Switzerland and Austria it shared a like fate about the 
same time. In Russia, the Empress Catherine, in 1762, re- 
moved it from the jurisdiction of the inferior courts, where 
it had been greatly abused; in 1767, by a secret order, it 
was restricted to cases in which the confession of the accused 
proved actually indispensable, and even in these it was only 
permitted under the special command of governors of pro- 
vinces.^ In the singularly enlightened instructions which she 
drew up for the framing of a new code in 1 767, the use of tor- 
ture was earnestly argued against in a manner which betrays 
the influence of Beccaria.* Under these auspices it soon be- 
came almost obsolete, and it was finally abolished in 1801. 
Yet, in some of the states of central Europe, the progress of 

' Gerstlacheri Comment, de Qusest. per Tormenta, Francofurti 1753, 
p. 56. 

2 Goetzii Dissert, de Tortura, Lipsiae 1742, p. 24. 

3 Du Boys, Droit Criminel des Peuples Modernes, I. 620. 

* Instructions addressees par sa Majeste I'Imperatrice de toutes les Rus- 
sies a la Commission etablie pour travailler a I'execution du projet d'iin 
Nouveau Code de Lois Art. X. ^^ 82-87. (Petersbourg 1769.) — See also 
Grand Instructions of Catherine II., London 1769, pp. 113-8. 



ABOLITION IN GERMANY. 517 

enlightenment was wonderfully slow. Torture continued to 
disgrace the jurisprudence of Wirtemberg and Bavaria until 
j8o6 and 1807. Though the wars of Napoleon abolished it 
temporarily in other states, on his fall in i8i4itwas actually 
restored. In 1819, however, George IV. consented, at the 
request of his subjects, to dispense with it in Hanover ; while 
in Baden it continued to exist until 1831. Yet legists who 
had been trained in the old school could not admit the 
soundness of modern ideas, and in the greater part of Ger- 
many the theories which resulted in the use of torture con- 
tinued to prevail. The secret inquisitorial process was re- 
tained and the principle that the confession of the accused 
was requisite to his condemnation. Torture of some kind is 
necessary to render the practical application of this system 
efficacious, and accordingly though the rack and strappado 
were abolished their place was taken by other modes, in 
reality not less cruel. When appearances were against the 
prisoner, he was confined for an indefinite period and sub- 
jected to all the hard usage to be expected from officials pro- 
voked by his criminal' obstinacy. He was brought up re- 
peatedly before his judge and exposed to the most searching 
interrogatories and terrified with threats. Legists, unwilling 
to abandon the powerful weapon which had placed every 
accused person at their mercy, imagined a new expedient for 
its revival. It was held that every criminal owed to society 
a full and free confession. His refusal to do this was a 
crime, so that if his answers were unsatisfactory to the judge, 
the latter could punish him on the spot for contumacy. As 
this punishment was usually administered with the scourge, 
it will be seen that the abolition of torture was illusory, and 
that the worst abuses to which it gave rise have been care- 
fully retained.^ Indeed, if we are to accept literally some 
letters of M. A. Eubule-Evans in the London ** Times" of 

1 Jardine, Use of Torture in England, p. 3. — Meyer, Institutions Judi- 
ciaires, T. I. p. xlvi.— T^ II. p. 262. 

44 



5l8 TORTURE. 

1872, the Unterstichungschaff ox Inquisitorial process as em- 
ployed in Prussia to the present day lacks little of the worst 
abuses recorded by Sprenger and Bodin. The accused 
while under detention is subjected to both physical and 
moral torture, and is carefully watched by spies. In the 
prison of Bruchsal there is a machine to which the prisoner 
is attached by leather thongs passed around head, trunk, and 
limbs, and drawn so tight that the arrested circulation forces 
the blood from mouth and ears ; or he is confined, perhaps 
for a week at a time, in a small cell of which floor and sides 
are covered with sharp wooden wedges, rivalling the frag- 
ments of potsherds which Prudentius considered the crown- 
ing effort of devilish ingenuity for the torture of Christian 
martyrs. 

Spain, as may readily be imagined, was in no haste to re- 
form the ancient system of procedure. As late as 1796, in 
the Vice-royalty of New Granada, when the spread of the 
ideas of the French Revolution began to infect society, some 
pasquinades appeared in Santafe displeasing to the govern- 
ment. Though the Viceroy Ezpeleta was regarded as a 
singularly enlightened man, he had a number of persons 
arrested on suspicion, one of whom was put to the torture to 
discover the author of the obnoxious epigrams. It is satis- 
factory to know that although several of the accused were 
convicted and sent to Spain to serve out long terms of pun- 
ishment, on their arrival at Madrid they were all discharged 
and compensated.^ Yet the use of torture was not legally 
abolished in Spain until 1812.^ 

Even France had maintained a conservatism which may 
seem surprising in that centre of the philosophic speculation 
of the eighteenth century. Her leading writers had not 
hesitated to condemn it. In the " Esprit des Lois," pub- 
lished in 1748, Montesquieu stamped his reprobation on the 

' Groot, Hist. Ecles. y Civil de Nueva Granada IT. 79-80. 
2 Du Bois, Droit Criminel de rEspagne,»p. 720. 



ABOLITION IN FRANCE. 519 

system with a quiet significance which showed that he had 
on his side all the great thinkers of the age, and that he felt 
argument to be mere surplusage.^ Voltaire did not allow its 
absurdities and incongruities to escape. In 1765 he endeav- 
ored to arouse public opinion on the case of the Chevalier 
de la Barre, a youthful officer only twenty years of age, who 
was tortured and executed on an accusation of having recited 
a song insulting to Mary Magdalen and of having mutilated 
with his sword a wooden crucifix on the bridge of Abbeville.^ 
He was more successful in attracting the attention of all 
Europe to the celebrated affaire Calas which, in 1761, had 
furnished a notable example of the useless cruelty of the 
system. In that year, at midnight of Oct. 13th, at Toulouse, 
the body of Marc-Antoine Calas was found strangled in the 
back shop of his father. The family were Protestants and 
the murdered man had given signs of conversion to Catholi- 
cism, in imitation of his younger brother. A minute investi- 
gation left scarcely a doubt that the murder had been com- 
mitted by the father, from religious motives, and he was 
condemned to death. He appealed to the Parlement of 
Toulouse, which after a patient hearing sentenced him to the 
wheel, and to the questioji ordinaire et extraordinaire^ to ex- 
tract a confession. He underwent the extremity of torture 
and the hideous punishment of being broken alive without 
varying from his protestations of innocence. Though both 
trials appear to have been conducted with rigorous impar- 
tiality, the Protestantism of Europe saw in the affair the 
evidence of religious persecution, and a fearful outcry was 
raised. Voltaire, ever on the watch for means to promote 

1 Taut d'habiles gens et tant de beaux genies ont ecrit centre cette pra- 
tique que je n'ose parlerapres eux. J'allois dire qu'elle pourroit convenir 
dans les gouvernements despotiques; ou tout qui inspire la crainte entre 
plus dans les ressorts du gouvernement: j'allois dire que les esclaves, chez 

les Grecs et chez les Romains Mais j'entends la voix de la nature qui 

crie contre moi, — Liv. vi. ch. xvii. 

2 Desmaze, P^nalit^s Auciennes, Pieces Justicatives p. 423. 



520 TORTURE. 

toleration and freedom of thought, seized hold of it with 
tireless energy, and created so strong an agitation on the sub- 
ject that in 1764 the supreme tribunal at Paris reversed the 
sentence, discharged the other members of the family, who 
had been subjected to various punishments, and rehabilitated 
the memory of Galas. -^ When Louis XVI. at the opening of 
his reign, proposed to introduce many long-needed reforms, 
Voltaire took advantage of the occasion to address to him 
in 1777 an earnest request to include among them the disuse 
of torture ;^ yet it was not until 1 780 that the question prepara- 
ioire was abolished by a royal edict which, in a few weighty 
lines, indicated that only the reverence for traditional usage 
had preserved it so long.^ This edict, however, was not 
strictly obeyed, and cases of the use of torture still occasion- 
ally occurred, as that of Marie Tison at Rouen, in 1788, 
accused of the murder of her husband, when thumb-screws 
were applied to both thumbs and at the same time she was 
hoisted in the strappado, in which she was allowed to hang 
for an hour after the executioner had reported that both 
shoulders were out of joint, all of which was insufficient to 
extract a confession.* There evidently was occasion for 
another ordonnance which in that same year, 1788, was 
promulgated in order to insure the observance of the pre- 
vious one.^ In fact, when the States- General was convened 
in 1789, the cahier des doleances of Valenciennes contained 
a prayer for the abolition of torture, showing that it had not 

» Mary Lafon, Histoire du Midi de la France, T. IV. pp. 325-355. — 
The theory of the defence was that the murdered man had committed 
suicide ; but this is incompatible with the testimony, much of which is 
given at length by Mary Lafon, a writer who cannot be accused of any 
leanings against Protestantism. 

2 Cheruel. Diet. Hist, des Institutions de la France. P. II. p. 1220. 

3 Declaration du 24 Aout 1780 (Isambert, XXVII. 373). 
" Desmaze, Penalit^s Anciennes, pp. 176-77. 

5 Declaration du 3 Mai 1788, art. 8. " Notre declaration du 24 Aout 
sera exdcutee" (Isambert, XXIX. 532). 



FRANCE — ITALY. 5 2 I 

as yet been discontinued there. ^ The question definitive or 
prealable, by which the prisoner after condemnation was 
again tortured to discover his accomplices, still remained 
until 1788, when it, too, was abolished, at least temporarily. 
It was pronounced uncertain, cruel to th^ convict and per- 
plexing to the judge, and, above all, dangerous to the inno- 
cent whom the prisoner might name in the extremity of his 
agony to procure its cessation, and whom he would persist 
in accusing to preserve himself from its repetition. Yet, 
with strange inconsistency, the abolition of this cruel wrong 
was only provisional, and its restoration was threatened in a 
few years, if the tribunals should deem it necessary.^ When 
those few short years came around they dawned on a new 
France, from which the old systems had been swept away as 
by the besom of destruction ; and torture as an element of 
criminal jurisprudence was a thing of the past. By the de- 
cree of October 9th, 1789, it was abolished forever. 

In Italy, Beccaria, in 1764, took occasion to devote a few 
pages of his treatise on crimes and punishments to the sub- 
ject of torture, and its illogical cruelty could not well be 
exposed with more terseness and force. ^ It was probably 

' Louise, Sorcellerie et Justice Criminelle a Valenciennes, p. 96. 

2 Isambert, XXIX. 529. — It is noteworthy, as a sign of the temper of 
the times, on the eve of the last convocation of the Notables, that this edict, 
which introduced various ameliorations in criminal procedure, and promised 
a more thorough reform, invites from the community at large suggestiqns 
on the subject, in order that the reform may embody the results of public 
opinion — " Nous el^verons ainsi au rang des lois les resultats de I'opinion 
publique." This was pure democratic republicanism in an irregular form. 

The edict also indicates an intention to remove another of the blots on 
the criminal procedure of the age, in a vague promise to allow the prisoner 
the privilege of counsel. 

3 Dei Delitti e delle Pene \ xii. — The fundamental error in the preva- 
lent system of criminal procedure was well exposed in Beccaria's remark 
that a mathematician woidd be better than a legist for the solution of the 
essential problem in criminal trials — " Data la forza dei muscoli e la sen- 
sibilita delle fibre di un innocente, trovare il grado di dolore che lo fara 
confessar reo di tni dato delitto." 

44* 



522 TORTURE. 

due to the movement excited by this work that in 1786 tor- 
ture was formally abolished in Tuscany, Yet Italy, which 
was the first to revive its use in the Middle Ages, was not 
disposed wholly to abandon it. Unless we may disbelieve 
all that is told of tiie means adopted to preserve legitimacy 
against revolution during the interval between Napoleon and 
Garibaldi, the dungeons of Naples and Palermo served as a 
refuge for this relic of brutal and unreasoning force. 

Yet so long as human nature retains its imperfections the 
baffled impatience of the strong will be apt to wreak its ven- 
geance on the weak and defenceless. As recently as 1867, in 
Texas, the Jefferson "Times" records a case in which, under 
the auspices of the military authorities, torture was applied to 
two negroes suspected of purloining a considerable amount 
of money which had been lost by a revenue collector. More 
recently still, in September 1868, the London journals report 
fearful barbarities perpetrated by the Postmaster-General of 
Roumania to trace the authors of a mail robbery. A woman 
was hung to a beam with hot eggs under the armpits ; others 
were burned with grease and petroleum, while others again 
were tied by the hair to horses' tails and dragged through 
thorn bushes. It must be added that the offending officials 
were promptly dismissed and committed for trial. The 
most recent case, however, is one which has lately been the 
subject of legislative discussion in Switzerland, where it 
appears that in the Canton of Zug, under order of court, a 
man suspected of theft was put on bread and water from 
Oct. 26th to Nov. loth, 1869, to extort confession, and 
when this failed he was subjected to thumb-screws and 
beaten with rods. 

In casting a retrospective glance over this long history of 
cruelty and injustice, it is curious to observe that Christian 
communities, where the truths of the Gospel were received 
with unquestioning veneration, systematized the administra- 
tion of torture with a cold-blooded ferocity unknown to the 



MISGUIDED RELIGIOUS ZEAL. 523 

legislation of the heathen nations whence they derived it. 
The careful restrictions and safeguards, with which the 
Roman jurisprudence sought to protect the interests of the 
accused, contrast strangely with the reckless disregard of 
every principle of justice which sullies the criminal proce- 
dure of Europe from the thirteenth to the nineteenth cen- 
tury. From this no race or religion has been exempt. What 
the Calvinist suffered in Flanders, he inflicted in Holland ; 
what the Catholic enforced in Italy, he endured in England ; 
nor did either of them deejii that he was forfeiting his share 
in the Divine Evangel of peace on earth and goodwill to 
men. 

The mysteries of the human conscience and of human 
motives are well nigh inscrutable, and it may seem shocking 
to assert that these centuries of unmitigated wrong are indi- 
rectly traceable to that religion of which the second great 
commandment was that man should love his neighbor as 
himself. Yet so it was. The first commandment, to love 
God with all our heart, when perverted by superstition, gave 
a strange direction to the teachings of Christ. For ages, 
the assumptions of an infallible church had led men to believe 
that the interpreter was superior to Scripture. Every ex- 
pounder of the holy text felt in his inmost heart that he 
alone, with his fellows, worshipped God as God desired to 
be worshipped, and that every ritual but his own was an 
insult to the Divine nature. Outside of his own communion 
there was no escape from eternal perdition, and the fervor 
of religious conviction thus made persecution a duty to God 
and man. This led the Inquisition, as we have seen, to 
perfect a system of which the iniquity was complete. Thus 
commended, that system became part and parcel of secular 
law, and when the Reformation arose the habits of thought 
which ages had consolidated were universal. The boldest 
Reformers who shook off the yoke of Rome, as soon as they 
had attained power, had as little scruple as Rome itself in 
rendering obligatory their interpretation of divine truth, and 



524 TORTURE. 

in applying to secular as well as to religious affairs the cruel 
maxims in which they had been educated. 

Yet, in the general enlightenment which caused and ac- 
companied the Reformation, there passed away gradually 
the passions which had created the rigid institutions of the 
Middle Ages. Those institutions had fulfilled their mission, 
and the savage tribes that had broken down the worn-out 
civilization of Rome were at last becoming fitted for a higher 
civilization than the world had yet seen, wherein the pre- 
cepts of the Gospel might at length find practical expression 
and realization. For the first time in the history of man the 
universal love and charity which lie at the foundation of 
Christianity are recognized as the elements on which human 
society should be based. Weak and erring as we are, and 
still far distant from the ideal of the Saviour, yet are we 
approaching it, even if our steps are painful and hesitating. 
In the slow evolution of the centuries, it is only by comparing 
distant periods that we can mark our progress ; but progress 
nevertheless exists, and future generations, perhaps, may be 
able to emancipate themselves wholly from the cruel and 
arbitrary domination of superstition and force. 



INDEX 



A AMES II. story of, 227 

Ablbeys, champions of, 175 

Abbo, St., of Fleiiiy, claims exemp- 
tion from ordeal for ecclesiastics, 3o8 
Abelard and Heloise, 319 

Aben Ezra on water of golden calf, 229 
Ahiadinng, or Kalabarese sorcerer, 222 
Abinijdon, Abbey of, employs the lot, 314 
black cross of, 325 

Abraham, covenant of, 26 

lire ordeal of, 267 

Abraham of Frisingen, ordeal of, 30S 
Absolution, effect of, on ordeal, .350 

Abuses arising from the ordeal, 361 

of torture, by judges, 475, 479 

Accomplices, their evidence not re- 
ceived in liome, 385 
torture to detect, 425, 454 
Accusation under torture, 476 
Accusatorial conjurators, 86 
Accused, ordeal ordered for, 833 
advantage taken of, in inquisi- 
tion process, 426 
allowed to see evidence, 445, 448 
evidence withheld from, 453, 473, 478 
denied a lieariug, 457 
privileges of, in England, 501 
allowed counsel in Spain, 410 
denial of counsel to, 428n, 456, 52l7i 
witnesses tortured against in ab- 
sence, 471 
confession of, after torture, 461 
(See also Defendant.) 
Accuser his relation to ordeal, 

334, 335, 338 
required to be present at ordeal, 354 
liability of, in Roman law, 387 

in Wisigothic law, 401, 402 

in Spanish law, 406 

(See also Appellant, Plaintiff, 
Lex Talionis.) 
Achan, case of, 228 

Acquittal, fees for, in ordeal, 331 

Adalbert, St., intercession by, 329 

Adaliier, case of, at Council of St. 

Baseul, 344 

Adaulfus of Compostella, legend of, 324 
Adhtre.m and dhert-m, 311 

Admiralty courts, duel not used in, 147 
Adolf Hauche, case of, 153 

Adrian prescribes moderation in tor- 
ture, 387 
Adultery, conjurators in accusations 
of, 43 



Adultery — 

trial of, in China, 220 

torture in cases of, 381, 488 

Adurabad, his ordeal, ' 2.33 

Advocati, ecclesiastical, 122, 175 

Advnwson, 176 

^neuni, or hot-water ordeal, 241, 244 
Afia-e.det-ih'^m ordeal, 221 

Afirt-ibnot-idiok ordeal, 221 

Africa, ordenls used in, 221 

Agde, council of, condemns the lot, 314??,. 
Age, minimum, subject to torture, 387 
Age, old, gives exemption from tor- 
ture. 472 
Agobavd, St., on rise of champions, 159 
on personal law, 241 
condemns the ordeal, 182, 355 
cold water ordeal not known to, 282 
Ahyto of Basle prescribes the ordeal, .355 
Ainos of Japan, ordeal used by, 221 
Aix-la-Chapelie, merchants exempt- 
ed from duel, 180 
Alamanni, laws of — 

selection of compurgators, 40 

perjurers rejected, 58 

compurgation in default of evi- 
dence, 49 
form of oath-taking, 55 
judicial duel, 104,110 
kinsmen as champions, 159 
tortui'e not used in, 393 
Albero of Merck e, ordeal refused to, 362 
Albigenses unconverted by fire or- 
deal, 275 
Alby, council of, in 1254, refuses 

counsel to accused, 42Sn. 

Alcala (Oidenamiento de), on the 

duel, 189 

Alexander II. prohibits Eucharist 

ordeal, 309 

condemns the ordeal, .355 

Alexander III. prohibits duel to ec- 
clesiastics, 141 
condemns the ordeal, 3.55, 362 
on ordeals for eccle-iastics, 358 
on extortion in ordeals, 361 
his deceit, 495n. 
Alexander II. of Scotland restricts 

the ordeal, 364 

Alexander of Constantinople, .330 

Alexander the slave, case of, 389 

A'exis Mikhaiiovich prohibits duel, 210 
Alfonso I. introduces Roman liturgy, 123 
Alfonso VI. forced to compurgation, 62 



5^6 



INDEX. 



Alfonso X. rej ects negative proofs, 68, 366 

favors the oath, 22n. 

resrtricts the duel, ISS 

legislation on torture by, 403 

Alfonso XI., legislation on diiel, 189 

the Ordenamiento di Alcala, 407 

on inquisitorial process, 410 

Ali Ibrahim Khan on the ordeal, 23o». 

on bot-water ordeal, 249 

on hot-iron ordeal, 255 

Aliprandus of Milan on perjury, 60 

Alltud^ or foreigner in Welsh law, 36 

Aloes, use of, in the corsused, ,301 

Altars, oaths taken on, 27 

Alternative numbers of compurgators, 40 

Althing, or Icelandic assembly, 17 

Ambassadors, champions required 

by, 120 

America, compurgation in, SO 

legal duel in, 216 

bier-right in 1824, 314 

peine forte et dure in, 511%. 

torture in, 451,522 

Amiens, hailli of, case of, 71 

restriction of duel in, 178 

nobles of, demand the duel, 200 

charter of 1105, 178 

of 131'), 436 

Amsterdam, case of 'ortnre in, 484 

Amula of Modena, case of, 258 

Andrd de Trahent, case of, 315 

Andres, Monastery of, its foundation, 279 

Andrevr, St., lance of, 270 

Angliand Werini, laws of — 

judicial duel among, 105 

limit of duel, 134 

kinsmen as champions, 159 

iron ordeal, 253 

torture not used by, 393 

Anglican church, compurgation in, 86 
Anglo-Saxon Laws — 

right of private vengeance, 17 

purgatorial o><ths, 23 

multiple oaths, 27 

kinsmen as conj urator.s, 36 

frangp.nfijusjiirandiim, 43 

selection of compurgatjrs, 44, 45 

juramentum supermortuum, 52 

formula of compurga'orial oath, 53 
conj urators outsworn, 56 

compurgation denied to the infa- 
mous, 340 
accusatorial conj urators, 88 
judicial duel not used, 105, 342«. 
hot-waier ordeal, 218 
single and triple ordeal, 253 
red-hot iron ordeiil, 253, 256 
ordeals for the dead, 2J8w. 
ordeals in wiich-trials, 287w. 
cald water ordeal, 283 
the corsnaed, 302 
ordeal of Eucharist, 307 
ordeal of lot, 312 
conditions of ordeal in, 334, 336, 337 
ordeal in default of compurga- 
tion, 338 
compounding for ordeals, 347 
prosecutor to be present at ordeal, 354 
Anglo-Saxons and Welsh, ordeal be- 
tween 242 



Anselm and the theft of Laon, 126, 285, 416 
AnIfi-jurartiP.ntnm, SS 

Antioche, Assises d' — 

judicial duel, 131 

minimum limit of, 135 

penalties of defeated combatants, 152 
of defeated champion, 163 

witnesses as champions, 162 

Antoninus Pius, his laws as to tor- 
ture, 383, 387 
Antony, his challenge of Augustus, 95 
Antrustions, hot-water ordeal for, 284 
Ajyparens, L^x, 134 
ApoUonius of Tyana, story of, 389 
Appeal of death, 212 

sustained by Parliament in 1774, 214 

in America, 216 

Appeals from judgment by battle, 113 

from seignorial courts, 414 

from order to torture, in Spain, 409 

in France, 453 

modes of eluding, 474,479 

x4,ppellant, his right to demand duel, 128 

penal ies for defeat, 150 

for default, 206 

choice of weapons granted to, 157 

use of champion by, 130, 170, 173 

his relation to ordeal, 334, 338 

Approver, combat? of, 213 

Aqiice frigidcejudiciiim, 279 

Aquitaine, resistance to torture in, 440 
Ara Maxima, used for oaths, 25 

Arabs, ordeal among, 231 

Aragon, minimum limit of value in 

duel, 135 

difference of religion a bar to 
duel, 138 

ordeal prohibited, 366 

Arcadius and Honorius on exemp- 
tions from torture, 380 
Ardennes, ordeal ot staff in, 345 
d'Argcnton, Seigneur, subjected to 

torture, 440 

d'Argentre, B., on bier-right, 321 

on torture process, 454i/. 

Arian priest defeated by ordeal, 244 

her'sy disproved by miracle, 331 
Aristogiton, torture of, 374 

Aristophanes, enumeration of tor- 
tures by, 375 
Arius, Ids miraculous death, 330 
d'Arraagnac, Charles, challenge of, 206 
d'Armagnac and Foix, duel between, 

195,198 
Arms of witnesses blessed on the 

altar, 111 

choice of, iti duel, 156 

Arnkell, the Godi, 50 

Arnoul of Flanders, offers iron or- 
deal , 259 
Arnoul, St., his relic tested by fire, 278 
Aiuustus, miraculous punishment of, 302 
Arques, laws of, in 12.51, 13 

restriction on duel, 179 

Arran, Earl of, challenges Bothwell, 211 
Arras, miraculous fire ordeal in, 276 

Arsenic, used in orieals, 328 

Aryans, social organization of, 13 

customs respecting oaths, 24 

the duel a custom of, 99 



NDEX 



527 



Aryans — 

the ordeal a custom of, 232 

use of torture by, 373 

Ashan lee, ordeals ia, 223 

Ai^hford and Thorutou, case of, 215 

Askew, Ann, torture of, 505 

Aspres, customs of, 19 

Assath, 38n. 

Assyrians, probable use of ordeal by, 227 

use of toiture by, 372 

Assii-es — see Antioche and Jerusalem. 
Astyages, use of torture by, 373 

Atto of Vercelli complains of com- 
purgation, 35 

objects to duel for clerks, 119, 140 
Auch, council of in 1068, prescribes 

the ordeal, 356 

Audefroi-le-Biitard, ballad by, 63 

Augustine, St., on ordeal-oaths, 30, 323 

argues against torture, 419 

Augustus tortures Q. Gallius, 376 

commends torture of slaves., 3S2 

Austria, disuse of torture in, 516 

Dukes of, liability to duel, 125 

Avantparliers, 65 

Avesta, respousibility of kindred in, 14 

ordeals in, 232 

Avitus of Vienue opposes the duel, 182 

condemns the ordeal, 35") 

Avou^, 175 

Ayeen Akbery, ordeals described in, 249 

on cold water ordeal, 281 

on ordeal of balance, 295 

on poison-ordeals, 328 

Ayesha, accusation of, 43ri. 

Aylesbury, Bible-ordeal in 1759, 296 

Aymar, Jacques, and the divining 

rod. • 369n. 



BACON, Lord, use of torture by, 504 
Baden, torture abolished in 1831, 517 
Bahr-recht, 320 

Bail required of combatants, 155 

liability, in case of default, 156 

Bajazet, story of, 51271. 

Balance, ordeal of, 294 

Baldwin Vll., his charter to Ypres, 178 
Baldwin Bochard defames the relics 

of St. Rotruda, 279 

Baluze on ordeal of cross, 298 

Bands of iron used as punishment, 329 
Bankruptcy cases, torture in, 477 

Barbarians, cold water ordeal not 

used by, 282 

structure of society among, 391 

torture originally not used by, 392 

adopted by, 395 

Barberousse, case of, 460 

Barcelona, council of, approves the 

lot, 3Un. 

Bariller and Carrington, duel be- 
tween, 204 
Barker, Janet, witch- trial of, 507 
Bastard cannot challenge legitimates, 129 
Battle, Wager of, 93 
Battoon, used in duels, 218 
Bavaria, torture used till 1807, 517 
Bavarians, Laws of the — 

compurgation in default of evi- 
dence, 50n. 



Bavarians — 

witnesses and conjurators, 57 

accusatorial conjurators in, 87 

judgment of God, 95 

judicial duel in, 104,110 

possession of land settled by 

duel, 123 

limit of duel, 134 

use of champions, 154 

of ordeal, 240 

torture of slaves, 393 

Bayle, Peter, argues against torture, 513 

Beam, selection of compurgators in, 48 

formula of cnmpurgatorial oath, 

53,74 
compurgation used till ISth cent 74 
accusatorial conjurators, 88 

limitation on duel in, 132 

penalty for defeat, 150 

for default, 155 

use of champions in, 125, 172 

duel in l.olS, 206 

duel legal in 18th century, 205 

hot- water ordeal, 249 

red-hot iron ordeal in, 260 

cold water ordeal, 2S4 

torture not used in 13th century, 429 
Beaulieu, Abbey of, its jurisdiction 

of duel, 145 

Beaumanoir on negative proofs, 68 

his silence as to compurgation, 69 
his opinion of duel, 195 

his silence as to torture, 429 

Beauvais, municipal champion of, 174 
Beccaria on torture, 456n., 475, 521 

Belfast, St. Patrick's jaw-bone at, 326 
Belgium, cold water ordeal in 1815, 293 
Benares, cases of ordeal in, 249, 255 

Benedict, St., miraculous interposi- 
tion of, 302 
Bengye oil, ordeal of, 223 
Bera and Sanila, duel of, 108 
Bergenroth on case of Bon Carlos, 410 
Bernard of Italy, case of, 412 
Bernard, St., deprecates study of 

Eoman Jaw, 67n. 

approves ordeal for heretics, 356 

Bernhardi, Martin, argues against 

torture, 513 

Bertin, St., intercession by, 330 

Bertrand, St., of Comminges, mira- 
cle by, 251, 326 
Beziers, council of, in 1255, torture 

not used by, 431 

Bible and key, ordeal of, 315 

Bibliomancy, 296 

Bier-right, 315 

in New York in 1824, .344 

Biers placed in lists for duel, 154 

Bignon, Jerome, on cold water or- 
deal, 291 
Bigorre, selection of compurgators in, 41 
exemption of widows from duel, 133 
strangers not admitted as cham- 
pions, 173 
duel discountenanced, 178 
Binsfeld on cold water ordeal, 288 
approves of bier-right, 321 
Birger Jarl prohibits ordeal, 365 
Bishoprics, champions of, 175 
Bishops selected by lot, 314ji. 



528 



INDEX, 



Bitter water, ordeal of, 229 

Blaatand, Harold, convicted by or- 
deal, 260 
Bleeding of murdered corpse, 31o 
Blind, question as to their torture, i72 
Blois, assembly of Notables at, 452 
Blondel, Geoffrey, a professional 

champion, 174 

Bobenzan, Dr., torture of, 465 

Boccaccio's story of the corsnscd, 331 

Boden, H. v., ou torture, 464n. 

Bodin, Jean, on cold water ordeal, 288 
approves of bier-right, 321 

on punishment for suspicion, 459 
recommends deceit in witch- 
trials, 495 
Boguet on uselessness of torture for 

witches, 493, 494 

condemns deceit in witch-trials, 495 
Bohemia, judicial duel in, 108 

01 deal in, 240 

use of iron bands for parricide, 329 
conditions of ordeal, 337 

ordeal in cases of consanguineous 

marriages, 356 

early use of torture, 415 

Boiling water ordeal, 244 

in Mazdeism, 232 

an aristocratic process, 284 

Bologna, regulations of torture in, 

471, 476 
Boniface, St., shrinks from causing 

perjury, 58 

Boniface of Russia, fire ordeal of, 272 
Bonn, chapter of, miracle in favor of, 326 
Books tested by fire ordeal, 275 

Boot, torture of the, 509%. 

Boots, greased, witches detected by, 468 
Bordeaux, valuation of oaths in, 90 

duel between Charles of Anjou 

and Pedro I. 97 

torture not used in, 440 

Borneo, ordeals in, 224 

Bnrrtc, an African ordeal, 223 

Bothwell, challenges of, 211 

Bourges, case of torture in, 433 

Boyvin du Villars, case related by, 477 
Bractun on compui-gation, 65, 78 

Brahm (F. M.) on cold water ordeal, 292 
Brahmans indispensable to ordeal, 

235, 245 

ordeal of balance for, 295 

of Travancore, ordeals used by, 250 

Brant, N., on cold water ordeal, 292 

Bread, ordeal of, 299 

BrehoQ Law — see Ireland. 

Bribery of Heaven, 127 

Bribes forbidden in ordeal, 354 

to priests in ordeal, 361 

Bridewell, torture used in, 506 

Britauny, accusatorial conjurators, 91 

duel legal till 1539, 204 

bier-right in, 321 

charter of 1315, 436 

restrictions on torture in, 446 

responsibility of j udges, 454 

British efforts to abrogate ordeals in 

India, 249 

Brothers, duel between, 129, 191 

Bruchsal, torture now used at, 518 

Bruges, duel forbidden in, ISO 



Bruges — 

option of ordeal, 336n,. 

ordeal obligatory in second accu- 
sations, 340 
curious witch-trial at, 493 

Brunhilda, use of torture by, 396 

Brzetislas, ordeal in laws of, 240 

Buda, council of, in 1279, prohibits 
ordeal, 366 

Buddha's tooth-relic, 277 

Buddhism, tendencies of, 220 

ordeal in, 235 

Bulgaria, duel still legal in, 210 

use of torture, 419 

Bullet on story of Dog of Montargis, 202 

Bnrchard of Chartres, case of, 356 

Burchard's Diary on Savonarola, 274 

Burgmeister, P., on ordeals, 

265m., 290n., 292 

Burgundians, Laws of the — 

kinsmen as compurgators, 47 

judicial duel, 103,110 

duel used to suppress perjury, 109 
use of champions, 1.59 

limitation on witnesses, 241 

torture of slaves, 393 

Burgundy, nobles of, demand the 

duel, 200 

duel abolished in, 204 

use of torture in, 436 

Burial alive, women punished by, 444w. 

Burke, opposes abrogation of appeal 
of death, 215 

Burlamacchi's account of Savonaro- 
la's ordeal, 274 

Burnt Njal, Saga of, 17 

CACABUS, 244 

Cffisarius of Konigswiuter, 326 

Cagots, 40 

Cain and Abel, their duel, 99 

Galas, ca!-e of, 519 

Calchuth, council of, condemns the 

ordeal of lot, 312 

Caldaria, 244 

Calendrino, story of, 301 

Caligula, his enjoyment of torture, 377 
Calixtus II. authorizes the ordeal, 

356, 358 
Cambray, torture of heretics of, 261 

Campetti and the divining rod, 370n. 

Cappadocians hardened to torture, 494 
Caracalla, torture ordered by, 380 

on evidence of slaves, 385 

Caraffa, Card., case of, 470 

Cardigan, miraculous taper of, 30 

Cardone, Eaymond of, duel with 

Count of Foix, 198 

Carlos, Don, case of, 410 

Caroline Constitutions, torture in, 461 
adopted in Germany, 463 

Carrington and BariUer, duel be- 
tween, 204 
Carrouges and le Gris, duel of, 202 
Carter, Paul, bier-right in case of, 320 
Caschielawis, torture of, 509?i. 
Casimir III. prescribes compurga- 
tions, 77 
on criminal prosecittions, 449 
Casimir IV. limits cjmpurgation, 77 



INDEX 



529 



Castelnau, Sieur de, offers duel, 206 

Castile, compurgation in, 74 

Castile and Navarre, controversy be- 

tweeu, 120 

Catalonia, duel at discretion of 

judge, 133 

Catliari, ordeal used on, 3o7 

Catherine II. discountenances tor- 
ture, 516 
Catholic bishop, Are ordeal of, 267 
Catholics convicted of heresy by or- 
deal, 357 
Cautinus of Auvergne uses Eucharist 

ordeal, 307 

Celestiu III. prescribes compurga- 
tion, 69 
prohibits the duel, 141,143,183 
Celts, their social organization, 1,5 
use of judicial duel, 100 
of ordeal, 238 
Centulla I. of Bigorre, restricts the 

duel, 178 

Centulla IV. of Bearn employs iron 

ordeal, 260 

Ceromaacy, 232 

Chabas on use of torture in Egypt, 372n. 
Chakee Soomar, case of, 2o0 

Chaldea, the ordeal in, 227 

Challenge of witnesses, 111 

of judges, 113 

Champagne, nobles of, demand the 

duel, 201 

struggle to avoid torture, 437 

Champion of England, 124 

Champions, 158 

allowed to ecclesiastics, 122, 141 

to women and cripples, 13S 

defeated, penalty of, 149 

weapons of, 156 

treachery of, 209 

hired, in England iu 17tli cent. 213 

in ordeal, 346 

Chance, ordeal of, 311 

in China, 220 

Charlemagne, his trial of Leo III. 33 

prescribes compurgation for 

priests, 38 

selection of compurgators, 40 

prohibits children as compur- 
gators, 47 
punishment of compurgators, 59 
requires accusatorial conjura- 

tors, 87 

recommends duel to suppress 

perjury, 109 

prohibits duel in international 

questions, 118 

forbids robbers as champions, 165 
iron o ideal for parricide, 256 

favors ordeal of cross, 296 

on iron band of parricide, 330%. 

ordeal obligatory on convicts, 340 
ordeal on seventh accusation, 341 
his varying opinion as to or- 
deals, 348 
on use of torture, 411 
laws on holding courts, 413 
Charlemagne and Witikind, duel be- 
tween, 121 
Charles IV. (Erap.) restrains Bishop 

of Liege from duel, 144 

45 



Charles IV. (Emp.)— 

exempts Worms from duel, 182 

torture under, 446 

Charles V. (Emp.) recognizes com- 
purgation, 75 
presides at duel, 189 
on use of torture in Spain, 409 
in Germany, 461 
Charles V. (France) prescribes com- 
purgation in 1357, 72 
Charles VI. (France) admits women 

as witnesses, 2(1 

restricts the duel, 204 

Charles IX. (France), his edicts 

against duels, 9ow., 208 

Charles I. (Engl.) endeavors to pre- 
vent duel, 214 
Charles XI. (Sweden) restricts com- 
purgation, 77 
Charles the Good of Flanders, mur- 
der of, 349 
Charles of Anjou challenges Pedro 

III. 97 

prohibits ordeal in Naples, 365 

Charles of Valois, use of torture by, 4.35 
Charles the Bold endeavors to pre- 
vent a duel, 205 
Chartres, Council of, authorizes the 

ordeal, 356 

Chastaigueraye and Jarnac, duel of, 98 
Chateauduu, ordeals reserved for 

church in, 360 

Chateau-Neuf, case of torture iu, 434 
Chatelet of Paris, torture at, 

434, 440, 441 

Cheese, ordeal of, 299 

Cherreen, ordeal of, in Eajmahal, 226 

Chertsey, Abbey of, 31 

Children under 14 not tortured, 472 

evidence of, against parents, 491 

of champions, disabilities of, 167 

Chimpanzee skull, ordeal of, 221 

China, restriction on accusers, 112n. 

interposition of Providence, 220 

ordeal of chance, 220 

Chindaswiud, Wisigothic laws of, 

399, 401 
Christ, relics of, 278 

Christianity, truth of, proved by 

miracle, 331 

influence of, in diminishing slave 
torture, 386 

Christians, persecution of, in Eome, 379 
Christiern IV. (Denmark) prohibits 

compurgation, 76 

Christiern V. (Denmark) prohibits 

compurgation, 77 

forbids use of torture, 499 

Church, the, its ties dissolve those 

of family, 20 

it favors compurgation, 33 

modifies conjuratorial oath, 69 

compurgation used by, 61, 81 

liability to duel imposed on, 

122, 140 
its opposition to duel, 182, 209 

seignorial jurisdiction of, 147 

champions of, 175 

influence in favor of ordeal, 242 

ordeals conducted by, 245 

protection of, by Heaven, 326 



530 



INDEX 



Churcli, the — 

its relations to the ordeal, 355 

claims exemption from ordeal, 358 
administration of ordeals by, 360 
prohibits torture, 419 

favors torture, 425 

resorts to deceit for conviction, 

495n. 

27 

55 

111 

360 



Churches, oaths taken in, 
ra.ilhs administered in, 
witnesses' arms blessed in, 
ordeals administered in, 
Churchmen — see Ec-clesin sties. 
Cicero on evidence under torture, 
Cid, the, exacts oath of Alphonso 

VI. 62 

Ciruelo on Eucharist ordeal, 311 

on uncertainty of ordeals, 351 

Cities, Imperial, restrictions on duel 

in, ] 81 

Citizenship in Rome, 
Civil suits, champions in, 
conditions of ordeal in, 
torture of slaves in, 
torture of witnesses in, 
Clarendon assizes of, on the ordeal, 
2S3, 
Class privileges as to oaths, 
Claudia Quinta, case of, 
Claudius, his enjoyment of torture, 

allows torture of freemen, 
Claxton and Lilbiirn, case of, 
Clement III. prohibits ecclesiastical 

duels. 
Clergy — see Ecclesinsties. 
Clotair II., his legitimacy proved, 

his rei^ulation of the oideal, 
Clevis and the vase of Soissons, 
Club used in combats of champions, 
Coblentz, Council of, in 922, 
Cobra used as ordeal, 
Cocceji recommends torture. 
Code of honor and judicial duel, dis- 
tinction between, 
confusion between, in loth 
century. 
Coke, Sir Edward, on torture, 504, 
Coke, Sir Thomas, case of, 
Colbert refuses counsel to accused. 
Cold iron, miraculous ordeals of, 
Cold water ordeal, 

explanation of, by Fred. II. 
Collaudavt^i- — see Compurgators. 
Coloman of Hungary, laws of, 

restricts ordeal to larger 
churches, 
Combat, judicial. 
Commercial law adverse to duel, 

147, 
to ordeal, 
to torture, 



3S8 



381 
170, 171 
337 
383 
470 



348 
23 
238 
377 
380 
213 

141 

37 
353 
391 
157 
40n. 
328 
515 

95 

201 
506 
503 
456 
265 
279 
364 

243 

360 
93 

180 
368 
424 



Common law, torture not lawful by, 500 

Communal societies among Aryans, 13 

among the Franks, 39 

Communes, duel abolished in, 177 

adverse to ordeals, 368 

resistance to torture, 438 

champions of, 174 

Communion, advantage of, in duel, 128 

Como, number of witches slain, 496 

Compensation for injuries, 17 



Compensation — 

shared by the kindred. 
Compounding for ordeals, 
Compurgation, 

adopted by the church, 33 

gives rise to jury trial, 
used in default of evidence, 
used as an alternative, 
dependent on degree of crime, 
degree of confidence reposed in 

it, 
punishment of perjury in, 
used in the Inquisition, 
ordeal in default of, 
denied to the infamous, 
Compurgatorial oath, absolute form 
of, 
in "Wales, 

modified by the church. 
Compurgators, 

originally kindred, 
other than kindred, 
number required, 
not witnesses, 
compared with witnesses, 
punishment of, when perjured, 
ordeal of cross for, 
obliged to undergo ordeal. 
Conditions of employment of com- 
purgation, 
of judicial combat, 
of ordeal. 
Confession, advantage of, in duel, 
anniils conviction by ordeal, 
condones crime, 
requisite to salvation, 
efi'ect of, on ordeal, 
extorted by ordeal, 342, 

extorted after conviction, 
extorted, rejected by the church, 
provisions for, in Gothic 

law, 
not lawful in England, 500, 
retracted, not valid, 
torture repeated for, 

404, 442, 462, 485, 
not necessary for conviction, 
requisite to safety of judge, 
torture for variation of, 
deceit used to obtain, 426, 

reward of, in Scotland, 
necessity of, in modern German 
law. 
Confidence reposed in compurga- 
tion, 
in judicial combat, 
in ordeal, 

enforced by law. 
Confirmation of confession, 442, 471, 
required of evidence under 
torture, 471, 

Confiscation for default in duel. 
Confrontation of witnesses, 
of accused and accuser, 
Conj utators — see Cumpui yators. 

accusatorial, 
Conrad of Marburg, his proceedings, 

uses ordeal on heretics, 
Conrad the Salic uses water ordeal, 
Conring, He!mann,on cold water or- 
deal. 



18 
347 
31 
, 35 
45 
48 
52 
52 

56 

58 

81 

338 

340 

53 
55 
66 
31 
35 
37 
38 
47 
57 



338 

41 
128 
333 
128 



350 
344 
475 



402 
502 
433 

487 
462 

482 
484 
495 



517 

56 
118 
347 
348 

485 

487 
155 
456 
474 



81 
363 

284 



INDEX. 



53^ 



Consanguinity determined by ordeal, 35/5 
Consecration of ordeal iron, 253 

Conscience, influence of, in ordeals, 344 
Constance, Council of, prescribes 

compurgation, 85 

Constantine, his laws as to torture, 380 
enforces the talio, 3S1 

Constantinople, iron ordeal in, 263 

fire ordeal in, 267, 27.5 

Constan-tius orders torture for sor- 
cery, 380 
Contradiction of evidence settled by 

torture, 471 

Control over result of ordeal, 353 

Convents, torture in, 497 

Conversion of Iceland, 176n.. 

of Denmark, 260 

of Russia, 272 

Conviction, fees for, in ordeal, 361 

Convicts, ordeal obligatory on, 340 

not tortured in Rome to impli- 
cate others, 387 
so tortnred in modern Europe, 

425, 454, 456, 521 
Cooper, Dr., on duel in South Caro- 
lina, 216 
Corbie, Abbey of, protected by royal 

judges, 117 

Corsica, use of torture in, 447 

Corsnajd, 299 

Cory, Giles, pressed to death, 511w. 

Coska, an Indian ordeal, 304 

Coney, Enguerrand de, case of, 19471. 

Coucy, .Jacques de, case of, 455 

Counsel allowed to accused in Spain, 410 

denied by Inquisition, 428 

denied in France by Colbert, 456 

allowed in 1788, 521 

fined for frivolous defence, 474 

forced to bear witness against 

clients, 492 

Courts, regulations of, under Car- 

lovin^ians. 413 

publicity of feudal, 461 

ordeal decreed by, 333 

Co?«.9 (les) lou roi, 146 

Covenant between the pieces, 26 

Coxe (Briutou), translation of Giiter- 

bock, oOOn. 

Crespy, duel restricted in, 179 

Crime an offence only against indi- 
viduals, 13 
expiation of, by confession, 350 
evidence of, requisite for toi*- 

ture, 462, 466 

torture in absence of, 477 

Crimen m aJeM^tis, 376 

Crimes, excepted, in exemptions 

from torture, 405, 406, 465 

Criminal actions, champions in, 170, 171 
torture of witnesses in, 470 

Criminals, their corpses ejected by 

the earth, 280 

saved by saints, 332 

hardened to torture, 494 

not received as champions, 165 

required to be present in court, 445 
Cripples forced to present cham- 
pions, 139 
limitations on right to cham- 
pions, 172 



Crippling, torture not to cause, 


463 


permanent, from torture. 


480 


Cross, oaths on, 

black, of Abingdon, 


28 


325 


ordeal of, 


296 


Crucet-house, torture of, 


418 


Orucisjadiciu'in, 


296 


Crusades, ordeals spread by, 


243 


Cuicthi, 


100 



Culm, Synod of, in 174,5, condemns 

cold water ordeal, 293 

Cunigunda, undergoes iron ordeal, 257 



DAMAGES allowed to cbampions, 167 
for tortiirei slaves in Greece, 375 
in Home, 386 

among Barbarians, 393 

Damhouder on compurgation in 1554, 76 
approves of duel, 209 

his work on Crim. Law, 463«.. 

case of sorcery, 493 

hardening of criminals, 494 

Danes converted by iron ordeal, 260 

Darius Hystaspes, his cruelty, 373 

David and Goliath, duel of, 228 

David, St., penitential of, 28 

David I., Burgher Laws of, 41, 53 

David II., on use of champions, 171 

Dantzic, cold water ordeal in 1835, 293 
Dead, the, evidence of, by compur- 
gation, 52 
trials of, by ordeal, 258?i. 
champions for, in duel, 139 
Deaf, the. questions as to their tor- 
ture, ' 472 
Death, appeal of, 212 
invoked as an ordeal, 330 
under torture, 402, 445, 446, 463, 510 
Death-bed accusations, weight of, 439 
Debt, use of compurgation in actions 

of, 79 

Deceit used towards accused, 426, 495 
Decline of the judicial duel, 176 

of the ordeal, 363 

of torture-system, 511 

Decurions exempt from torture, 379 

Default in duel, penalty for, 1.55, 206, 207 
Defeat in duel, penalties of, 149, 163 

Defence in inquisitoi-ial process, 

453, 473, 479 
Defendant forced to accept battle, 

128 1.32 
entitled to battle, ' 129 

penalty of, for defeat, 1-50 

choice of weapons with, 157 

use of champion by, 170, 173 

when killed, declared innocent, 189 
position of, in Roman law, 238 

ordeal for, in India, 235 

ordeal prescribed for, 3.33, 336 

obliged ti) prove his innocence, 33 7 
disabilities imposed on, 451, 473 

Degradation inflicted on champions, 166 
De la Barre, Chev., case of, 519 

Delrio on the Eucharist ordeal, 311 

on torture in witch-trials, 492 

recommends deceit, 495 

Denier, value of, 134?i. 

Denmark, conversion of, by ix'on or- 
deal, 260 



532 



INDEX. 



Denmark — 

kinsmen as conjurators, 39 

compurgation and jury trial, 46 

compurgation used in 17th cent., 76 

antiquity of judicial duel, 101 

abolition of duel, 176 

ordeal prohibited in, 365 

late introduction of torture, 498 

Des Guerres and Fendille, duel of, 207 

Desrene, 73 

Deuterius of Constantinople, 331 

Dharma and adharrna, 312 

DJierem and adherem, 311 

Didymoteichos, Bishop of, and the 

ordeal, 350 

Die. relic of St. Maur at, 325 

Die, or Moslem wer-geld, Tin. 

Dimetian Code — see Wales. 
Dinkard, the, ordeals in, 233 

Dinner, torture only before, 476 

Dinteville and Du Plessis, duel of, 207 
Diocletian, his persecution of Chris- 
tians, 378 
exemptions from torture by, 379 
prohibits torture of slaves by 

masters, 386 

limits use of torture, 388 

Diplomacy, use of duel in, 12) 

Diodorus Siculns on Egyptian jus- 
tice, 372 
Discussions on use of torture, 514 
Disease, exemptions from torture in, 472 
Dislocations inevitable in torture, 480 
Disqualification, bodily, for duel, 

158, 172 
Divination employed by judges, 468 

Divining rod, 369 

Divorce trials, compurgation in, 86 

Doctors, their exemption from tor- 
ture, 405, 408, 464 
Dog of Montargis, story of, 202 
Bolum b num. et mnlum, 495 
Domenico da Peschia, 273 
Dominic, St., miracle wrought by, 275 
Domitian, patrician tortured by, 380 
Douatus, his torture by Diocletian, 

37 8n. 
Dortmund exempted from duel, 182 

Doubtful cases, duel in, 130 

Doubtful results in ordeal, 353 

Doubts, solution of, referred to 

Heaven, 218 

Dower, battle not allowed in cases 

of, 129 

Drowning, punishment of, 282 

for witches, 286 

Dubos, Jehau, case of, 458 

Duel, judicial, 93 

Duel supersedes compurgation, 56 

Duisbourg, merchants exempted from 

duel, 180 

Dumb, the, questions as to their tor- 
ture, . 472 
Dunning supports the appeal of 

death, 215 

Dunstan, St., his formula for cold 

water ordeal, 281 

Du Plessis and Dinteville, duel of, 207 
Dyaks, ordeal among, 224 

Dyvnwal-moel-mud, his laws, 101 



Ij'ARTH ejects corpses of criminals, 280 
!j from grave used to detect 

witches, 333 

Ebroin, his device to elude oath, 28 

Eccelino di Eomano, cruelties of, 424 

Ecclesiastical jurisdiction, duel in, 144 

torture in, 440 

Eccle-iastical law, compurgation in, 85 

lex talionis in, 151 

Ecclesiastics, solidarity of, 20 

oaths administered by, 28 

compurgation used by, 33 

oaths of, .34 

evidence of, final in Wales, 51 

they evade the compurg. oath, 54 

not allowed to be advocates, G7n. 

accusatorial conj urators required 

for, 87 

not received as witnesses, 112 

judicial duel among, 100 

liability to duel, 122, 140 

their light to use champions, 141 

use of corsnasd by, 302 

claim privilege of ordeal, 357 

claim exemption from ordeal, .358 
uphold the ordeal, 355, 359 

their intervention prohibited in 

judgments of blood, 412 

are not to be concerned in torture, 416 
their privileges in torture, 465, 466 
their exemption from torture, 

380, 408, 420, 4.33 
cases of torture of, 397, 418, 503 

use of torture by, 491 

Ecgbehrt of York claims exemption 

from ordeal for ecclesiastics, 358 

Edict of Theodoric, judicial duel not 

referred to, 107 

torture in, 398 

Edward the Confessor, and Duke 

Godwin, 301 

Edward III. encourages compurga- 
tion, 79 
Egil Skallagrimsson, Saga of, 102 
Egilwin of Durham and relics of Os- 

wyn, 278 

Egiza introduces ordeal among Goths, 241 
Egypt, traces of ordeal in, 226 

use of torture in, 371 

Eisenach, limitations on duel, 181 

Ekkehardus Juniorencorruptions of 

clergy, 361 

Eldon, Lord, on use of champions, llOn. 
Elfstan of Abingdon, case of, 248 

Elizabeth, Queen, legislation on 

duels, 213 

EUenborough, Lord, decrees the 

duel, 215 

Elne, council of, in 1085, prescribes 

the ordeal, .356 

Emeiic, St., intercession by, 330 

Emma, Queen, case of, 258 

Emo of Wittevverum on consequences 

of ordeal, 365 

Emperor, Roman, his prerogatives, 376 
Employer, slave not tortured against, 383 
Enchanters, loss of weight by, 287 

See also Witchcrajt. 
Endurance, trial of, in cold water 
ordeal, 281 



INDEX 



533 



Endurance — 

in ordeal of cross, 296 

Engel, M. A., defends use of torture, 514 
Engilbert of Treves and Henry of 

Limburg, 303 

Engiaud — see Anglo-Saxons. 

multiple oaths in, 27 

selection of compurgators in, 41 

compurgation aud jury-trial, 45 

compurgation denounced in 11th 

century, 62 

decline ot compurgation in 12th 

century, 64 

persisteuce of compurgation, 78 

abolished in 1833, 80 

compurgation in heresy trials, 85 
accusatorial conjurators, 88, 89 

Inquest of Fame, 65 

judicial duel iutroduced by Wil- 
liam I., 106 
witnesses liable to duel, 111,112 
as champions, 161, 162, 163 
challenging of judges, 114 
altering ot cou.t records by the 

duel, 125 

restrictions on duel, 131, 135 

minimum limit, 134 

oaths required of combatants, 148 
penalties for defeat, 150 

for default, 155 

variations in use of champions, 169 
appeal of death, 212 

persistence of duel, 212 

duel not used in maritime law, 148 
iron ordeal aristocratic, 256 

water ordeals servile, 284 

cold water ordeal in witch-trials, 29] 
Bible-ordeal in 1759, 296 

cold water ordeal in 19th cent., 294 
the corsnsed, 302 

ordeal of Bible and key, 315 

conditions of ordeal, 334, 336, 337 
ordeal in absence of evidence, 335%. 
ordeal not conclusive, 348 

ordeal prohibited in 1219, 363 

torture, irregular use of, 418 

not admitted in common law, 500 
extorted confession illegal, oOJ, 502 
fairness towards accused, 501 

torture occasionally used, 503 

under royal prerogative, 503 

abolished by Gi eat Rebellion, 506 
influence of witchcraft, 503 

England, champion of, 124 

English and iNormaas, duels be- 
tween, 10671. 
influence revives duel in France, 204 
Englishmeu, impatience of torture, 504 
Euguerrand de (Joucy, case of, 194ri. 
Euguerrand de Marigny, trial of, 435 
Epicharis, constancy of, 379 
Epilepsy, questions as to torture in, 472 
Equalization of champions, 173 
Equestrian duel a Gothic custom, 108 i 
Erfurt, cruel treatment of by Lothair 

il., 417 i 

case of torture in, 465 { 

Eric VII. of Denmark, 18 

Erkenbald de Burban, story of, 306 

Erwig, King, on abuse of torture, 40^ ! 
Estevenes li Barbiers, case of, 458 

45 



Estrapade, torture of, 4.'55 

Ethelwold, St., miracle by, 248 

Eucharist a prerequisite to ordeal, 246 
Eucharist, ordeal of, 304 

Eugenius II. cold water ordeal at- 
tributed to, 282 
Eulalius, Count, acquitted by Eu- 
charist, 307 
Eurik, Wisigothic laws compiled by, 399 
Europe, poison ordeals obsolete in, 327 
Evans, Eubule, on torture in Ger- 
many, 517 
Evidence, rating of, 21 
of kinsmen, 36m. 
compurgation in default of, 49 
except in Wales, 51 
ordeal in absence of, 3.35 
under torture, value of, in Home, 388 
in modern times, 487 
justifying torture, refinements 

of, 432 

contradictory, settled by torture, 471 
withheld from accused, 473, 478 

under torture, confirmation of, 

404, 433, 487 
legal, against witches unattain- 

able, 492 

of slaves, torture requisite to, in 

Greece, 375 

in Kome, 382 

in Spain, 405 

Examen pedalc, 232 

Executioner, control of torture by, 480 

his fees, 485 

Exemption from ordeal claimed for 

ecclesiastics, 358 

Exemptions from torture, 

405, 408, 472, 506 

Exorcism in hot water ordeal, 246 

in hot iron oi deal, 2.54 

in cold water ordeal, 28 J 

in corsnsed, 3 JO 

in ordeal of Eucharist, 307 

Experimr.ntum cruets, 299 

Extortion of confession is homicide 

in England, 502 

Extortions practised under ordeal, 361 

under torture, 418 



FALSE decretals, torture forbidden 
in, 420 

on accusation of accomplices, 455 
Fame, Inquest of, 65 

Family, s.>lidarity of, 13,18 

Father and son, rule as to torture of, 473 
Fees payable to champions, 173/1., 3 74 
for ordeals, 360 

for administering torture, 485 

Feini, responsibility of kindred 

among, IS 

tribal responsibility, 39ra. 

judicial duel among, 100 

ordeal used by, 238 

tortuie not used by, 392 

Felouie-i, champions not allowed in, 170 

to be tried by ordeal, 233 

Females incompetent to prosecute, 18 

incompetent as witnesses, 112 

admitted as witnesses, 201 

Fendilles and Des Guerres, duel of, 207 



534 



NDEX. 



Ferdinand and Isabella, their laws 

on torture, 409, 410 

Ferri Judicium, 252 

Fetishism respecting Eucharist, 31)4 

Feudalism, j udicial processes of, 414, 451 
resists abrogation of compurga- 
tion, 72 
resists abrogation of duel, 192 
resists introduction of torture, 435 
destroyed by Roman law, 1S6 
Feudal law, torture under, 411 
Fian, Dr., tarture of, 509?i. 
Fiefs, disputed, decided by water or- 
deal, 285 
Figeac, Abbey of, its advocates, 175 
Fijodalgo, privileges of, 23 
Fines for insults, 167 
for defeat in duel, 150, 153, 192, 193 
for default iu duel, 155 
for defeated conjurators, B6ln. 
Fire, ordeal of, 266 
in Greece, 236 
use of, as torture, 409 
Flamen Dialis relieved from oaths, 34ri. 
Flanders, compurgation in 16th 

century, 76 

punishment for default m duel, 155 
merchants exempted from duel, 180 
duel legal in 16th century, 209 

ordeal obligatory in second accu- 
sations, 340 
evidence withheld from accused, 

479n. 

Fleta, multiple oaths in, 27 

conjurators in, 79 

Fleurant de Saint-Leu, case of, 443 

Fleury, Abbey of, vindicated by St. 

Benedict, 302 

Floating of magicians and witches, 2S7 
Flower-buds iu fire ordeal, 277 

Foix and Armagnac, duel between, 

195, 198 
Fontaines, Pierre de, does not allude 

to compurgation, 70 

use of torture unknown to, 430 
Fontanelle, Abbey of, its ordeal iron, 253 
Forchheim, Jews convicted by bier- 
right, 316 
Forath, foreoath, 88 
Forez, evasion of duel in, 13In. 
Formulas of compurgatorial oath, 53, 66 
Fortescue on torture in England, 502 
Fourteen the minimum age for tor- 
ture, 387 
France, legislation as to oaths, 22n. 
compurgation in 9th century, 45 
in 12th century, 61, 63 
formula of compurg. oath, 53 
cope of St. Martin used for 

oaths, 55 

decline of compurgation, 70 

witness liable to duel, 111, 112 

women and clerks not allowed 

to testify, 112 

women admitted to testify, 201 

serfs admitted as witnesses, 113 

witnesses held harmless by 

principal, 113 

challenging of judges, 114, 116 

limitations on judicial duel, 128, 134 
liability of Jews to duel, 136 



France — 

questions of rank in duel, 136 

claims of churchmen to the duel, 

143, 146 
penalties of defeated combat- 
ants, 152 
weapons allowed in duel, 157 
kinsmen as champions, 159 
general use of champions, 160, 171 
penalty of defeated champions, 164 
restriction on duel in communes, 179 
decline of duel, 190-208 
repression of cold water ordeal 

in 17th century, 291 

ordeal of cross, 296, 298 

ordeal of lot' 312 

ordeal obligatory, 334 

ordeal in absence of evidence, 335rt.. 
ordeal obligatoiy on convicts, 340 
ordeals as punishment, 310 

witnesses to be present at or- 
deal, 353 
disappearance of ordeal, 365 
introduction of torture, 428 
development of torture, 432, 446 
lese-majestii recognized, 437 
inquisitorial process introduced, 451 
perfected bv Francis I. 453 
revised by Louis XIV. 456 
nobles not exempt from torture, 465n. 
disuse of torture, 518 
Francis, St., of Assisi, offers fire 

ordeal, 271 

Francis I. challenges Charles V. 97 

grants judicial duel, 206 

perfects inquisitorial process, 453 

Franconia, purgatorial oaths in, 23rJ. 

Frangens j'lyjurandum, 43 

Franks, compurgation used by, 32 

ordeal among, 210 

compounding for ordeals, 347 

torture of slaves, Sf'S 

torture of freemen introduced, 396 

Fredegonda, case of, 37 

use of torture by, 396 

Frederic Barbarossa uses duel to 

destroy Henry the Lion, 124 

exempts merchants from duel, ISO 
orders iron ordeal for slaves, 257 
gives defendant choice of ordeal. 

336n. 
uses torture as punishment, 417 

Frederic II. omits compurgation in 

Sicilian Laws, 69 

but admits it in Germany, 74 

compels ecclesiastics to duel, 144 
grants choice of weapons to de- 
fendant, 157 
provides champions at public ex- 

peiise, 169 

commands champions to use 

teeth and hands', 164 

exempts towns from duel, 181 

denounces the duel, 186 

prohibits the ordeal, 364 

uses torture as punishment, 417 

commences use of judicial tor- 
ture, 423 
his persecution of heresy, 425 
Frederic of Mainz acquitted by Eu- 
charist, 308 



INDEX. 



535 



Frederic the Great restricts use of 

torture, 51-1 

Fre.dum, or public fine, 16». 

Free judges, accusatorial conjura- 

tors among, 91 

Freemen not subject to torture in 

Greece, 374 

nor in Eomau EeinTblic, 376 

become subject under Empire, 377 
independence of, among Barba- 
rians, 392 
not tortured among Ostrogoths, 398 
are tortured among Wisigoths, 401 
torture of, in Spain, 406 
obliged to attend the courts, 413 
Freedmen not tortured against 

patron in Kome, 384 

torture of, among Ostrogoths, 399 
among Wisigoths, 400 

Frese, Georg, on fire ordeal, 264 

Frisia, ordeal prolonged in, 365 

Frisians, compurgation among, 32 

valuation of oaths among, 44 

confidence felt in compurgation, 56 
perjured conjurators, 59 

judicial duel among, 105, 110 

lituft entitled to dael, 135 

hot water ordeal. 248 

ordeal of lot, 313 

ordeal prolonged, 365 

torture not used by, 393, 499 

Frithh'rr^n, 39%. 

Froissart's account of duel of Car- 
rouges, 202 
Frotho III. introduces judicial duel, 101 
Fuero Juzgo, 69 
use of torture in, 403 
Fnero of Madrid, compurgation in, 69n. 
Fuero Viejo de Castiella, 74 
Fulk the inquisitor, cruelty of, 427 
Fulk Nera of Anjou grants juris- 
diction of duel, 144 
Furstenberg, Count of, permits iron 
ordeal, 264 



G^TJM, ordeal used in, 236 

Gnlnnna^ .51 

Galbert, his explanation of the ordeal, 3.50 
Gallius, Q., tortured by Augustus, 376 
Gallows, fragment of, to detect 

witches, 333 

Gaston IV. of B^arn grants the For 

de Morlaas, 175 

Gaul, judicial duel not mentioned in, 100 
torture of widows, 393 

Geneva, ecclesiastical supervision of 

duel, 175 

Gengulphus, St., miracles by, 2")1 

Gentle blood, privilege of, in duel, 136 
Gen.i, the Roman, 15 

GeofFry of Vendome complains of 

monkish duellist. 141 

George III., duel abrogated under, 216 
George IV. abolishes torture in Han- 
over, 517 
George Pachymere on iron ordeal, 263 
Gerald, St., of Braga, case of, 330 
Gerard of Cambrai on torture for 

heresy, 415 

Gerberga drowned as a witch, 283 



Germain, St., his rivalry with St. 

Martin, 331 

Germans, ancient, judicial duel 

among, 103 

Germany — see Alamanni, Angli, Ba- 
varians. Ripuarians, Laws 
of. Also, Sacksen.s-piegel, Sach- 
sische Weichbild and Schwa- 
henspiegel. 
purgatorial oaths, lln. 

purgatorial oath of father, 39w. 

number of compurgators, 37 

jurnmentum stipermortuiim, 52 

compurgation maintained, 75 

inquisition in 13th century, 82 

accusatorial conjurators, 89 

appeals from judgment, 117 

duel encouraged by Otho I., 119 

restrictions on judicial duel, 129 

questions of rank in duel, 137 

cripples forced to present cham- 
pions, 139 
duels fought by women, 139 
penalties for defeat in duel, l.o3 
for default, 155 
equal advantage to combatants, 157 
early use of champions, 169 
right to employ champions, 160 
disabilities of champions, 167 
exemptions of towns from duel, 181 
duels betweenkindred forbidden, 191 
hot water ordeal universal, 249 
red hot iron ordeal, 256 
cold water ordeal in disputes 

about lands, 285 

in witch-trials, 287 

used till 19th century, 293 

divination by lo% 313n. 

bahr-rechtin, 320 

conditions of ordeal in, .334, 336 

ordeal for slaves, 339 

ordeal obligatory in second accu- 
sations, 341 
persistence of ordeal, 366 
extra-judicial use of torture, 417,418 
introduction of torture, 421, 446 
final torture system, 461 
gradual abolition of torture, 515 
revival of torture, 517 
Gerode, Abbey of, employs iron or- 
deal, 25^ 
Geroldus converts Mecklenbergers, 243 
Gerstlacher defends use of torture, 515 
Gervaise Caussois, case of, 443 
Getter's case of bier-right, .322 
Ghee, boiling, ordeal of, in India, 2-49 
Ghent, duel not legal in, 179 
Giovanni Gualberto, St., authorizes 

fire ordeal, 268 

Giraldus Cambrensis on study of 

Roman law, 67'm. 

Gladiators assimilated to champions, 166 
subject to torture in Rome, 382 

Glanville, jury trial attributed to 

him, 46n. 

Gloucester, Statute of, 212 

Gloucester, Thomas of, code of duel, 212 
Gobereen, ordeal of, in Rajmahal, 226 
God, judgment of, 94 

interposition of, 217 

Godelmanu on cold water ordeal, 288, 289 



536 



INDEX. 



Godfrey, St., his charter to Amiens, 178 

Godi, or Norse priest-jndge, 25 

decides as to compurgation, 49 

Godwin, Duke, his death by corsuaed, 301 

Golden Bull, torture in, 446 

Gothic liturgy preserved by duel, 123 

by fire ordeal, 274 

jurisprudence, 397 

Goths — see Osir( goths and Wisigoths. 

compurgation not used by, 32 

ordeal among, 241 

use of torture by, 397 

Gout, questions as to torture in, ■ 472 

Graefe, Johann, denounces torture, 512 

Grdgds — see Iceland. 

Grauiiuatico, Thomaso, on punishment 

for suspicion, 460 

Gran, synod of, in 1099, on theordeal,356 

Graudier, Urbain, his trial for sorcery,493 

Gratiau on prohibition of ordeals, 35S 

on extorted confessions, 420 

Grave, oaths taken over the, 52 

Grease, anointing with, in duel, 206 

detection of witches by, 468 

Greeks, social organization among, 14 

traces of wer-gild in, 15 

oaths, form of, 24 

use ot torture, 373 

Greek Empire, ordeal used in, 236 

red-hot iron ordeal, 263 

ordeal of fire, 275 

precautions used in ordeal, 354 

Gregory I. on oaths as ordeals, 324 

rejects extorted confession, 419 

Gregory II. prescribes oaths for 

clerks, .34 

Gregory III. penitential of, 28 

Gregory VII. tried by cold water 

ordeal, 285 

employs Eucharist ordeal, 309 

ordeal improvised by, 310 

Gregory IX, prescribes compurga- 
tion for heresy, 81 
Gregory of Tours, purgatorial oath of, 27 
accused of slander, 396 
Grenoble, accused denied a hearing 

in, 457 

Grillandus prescribes use of com- 
purgation, 85 
Grimkel, Bishop, tests relics by fire, 278 
Grimoald seeks to restrict judicial 

duel, 105 

restricts right of slaves to the 
duel, 135 

Grossolano of Milan, case of, 268 

Guarantees of oaths required, 21 

Guardians bound to present cham- 
pions for wards, 139 
Gudrun, her triumph in ordeal, 335 
Guelf, House of, founded on a duel, 123 
Guibert of Nogent uses ordeal on 

heretics, 356 

Guicciardini on Savonarola's ordeal, 274 
Guido, Emperor, allows combat to 

ecclesiastics, 140 

Guido of Fescara, miracle wrought 

by, 142 

Guilds, responsibiliiy of members of, 39 
Gulathingenses Leges — see Magnwf 

of Norway. 
Gundeberga, Queen, case of, lOi I 



Gundobald prescribes judicial duel, 103 
urges it to repress perjury, 109 

Gunner's case, 79 

GUnther, 6. F., on abolition of tor- 
ture in Saxony, 515 
Gushtashp converted by ordeal, 260 
Gustavus Adolphus, compurgation 

in laws of, 77 

Giiterbock on Bracton, 500m, 

Guy of Elanders forbids the duel in 

Bruges, ISO 

Gwentian Code— see Walts. 



HACO HACONSEN, his legislation, 18 
selection of compurgator's, 46 

relaxes forms of compurgatorial 

oath, 54 

prohibits ordeal, 365 

Hainault, penalty for default in 

duel, 155 

use of torture in witch-trials, 493 
Hair, floating of, in cold water or- 
deal, 280 
Hair-relics tested by fire, 278 
Hale, Sir Matthew, on law of duel, 214 
Halle, cruel treatment of, by Lothair 

II., 417 

punishment for suspicion in, 460 

case of torture in, 472 

Hamburg, ordeal in 1670, 264 

Hand, loss of, penalty for perjury, 59 
sealing of, in iron ordeal, 254 

of champion benefited by ordeal, 259 
Hanover, torture abolished in 1819, 517 
Harold Blaatand converted by or- 
deal, - 260 
Harold the Simple abolishes the duel, 177 
Harry, slave, convicted by bier-right, 322 
Haute Justice, marks of, 192 
torture a prerogative of, 410, 441 
Henry II., Emperor, accepts chal- 
. lenge of Hermann of suabia, 124 
restricts use of champions, 168 
allows duel to the guilty, 122 
prescribes water ordeals for 
slaves, 284 
Henry lil., Emperor, on selection of 

compurgators, 40, 50a. 

challenges Henry I. of France, 120 
grants jurisdiction of duel to the 
church, 145 

Henry IV., Emperor, accepts chal- 
lenge to duel, 123 
his charter to Pisa, 177 
declines the Eucharist ordeal, 310 
Henry V., Emperor, his charter to 

Venice, 52 

Henry 11. (England), bleeding of his 

corpse, 316 

Henry III. (England) prohibits the 

ordeal, 363 

Henry VIII., England, use of tor- 
ture under, 503 
Henry II. (France) swears not to 

grant duel, 207 

Henry III. (France) reforms Norman 

customs in 1583, 73 

Henry IV. (France), his edicts 

against duels, 96n. 

his pardons for duels, 98 



INDEX. 



537 



Henry II. (Navarre) revises Bear- 

nese code, 74 

presides at a duel, 206 

Henry of Liinbnrg, warning miracle, 303 
Henry of Lorraine, his right to pre- 
side over duels, 208 
Henry the Liou, case of, 124 
Heresy, compurgation for, 81-85 
torture in trials for, 408, 425 
Heretics, conviction of, by the ordeal, 

356, 357, 363 
tortured for confession, in 1025, 415 
tortured in Holland, 512 

Herigarius proves the truth of Chris- 
tianity, 331 
Herkiasuccumbs in ordeal, 335 
Hermann of Slavonia prescribes com- 
purgation, 78 
Hermann of Suabia challenges Hen- 
ry II., • 124 
Hidulf, St., intercession by, 329 
Hildebert of Le Mans on torture, 416 
Hildebrand— see Gregory VII. 
Hincmar objects to compurgation, 44 
on boiling water ordeal, 244, 247 
on cold water ordeal, 280 
the water ordeals plebeian, 283 
on regulations of ordeal, 338 
Hindu ordeals — see Indi r. 
Hinduism, family organization in, 14 
Hiouen Thsang on iron ordeal, 234 
on fire ordeal, 277 
on cold water ordea.l, 281 
on ordeal of balance, 295 
•on poison ordeal, 328 
Hired champions, 161,169,171 
Hirpi, 252 
Hoel Dda, laws of, 20, 43 
juramentum /mpermot tuum in, 52 
duel not mentioned in, 101 
Holland, ordeal of balance in, 296 
disuse of torture in, 513 
Holm- gang, 101 
abolition of, 176 
Holy Ghost, ordeal of, 310 
Holy wafer, legends concerning, 304 
Homer, judicial duel in, 99 
Homicide cases, duel requisite in, 130 
Honorius III. prohibits the ordeal, 366 
Honorius of Autun on functions of 

priests, 358 

Horatii and Curiatii, 95 

Home attributes jury trial to Glan- 

ville, 46w. 

attributes judicial duel to Al- 
fred, 106w . 
Host, superstitions concerning the, 304 
Hot- water ordeal, 244 
in Japan, 221 
Hugh, Bishop of Die, 57 
Hugh of Provence, duel of, 118 
Hugues - le- Grand challenged by 

Louis d'Outremer, 120 

Hungary, duel in, 142 

duel restricted in 1492, 208 

introduction of ordeal in, 243 

ordeal of balance in, 296 

witnesses to be present at or- 
deal, 354 
ordeals administered by the 
church, 360 



Hungary — 

fees for ordeals, 360 

use of torture, 449 

Husband and wife, rule as to torture 

of, 473 

Hunger and thirst, torture of, 485 

Hutchinson on African ordeals, 222 



TARNSIDA, IS 

1 torture not alluded to in, 498 

Iceland, transferring of suits in, 17 

responsibility of kindred, 18 

compurgation, .33, 76 

judges decide as to compurga- 

gation, 49 

compurgation in default of evi- 
dence, 50n. 
form of compurgatorial oath, ,54 
accusatorial conjurators, 90 
judicial duel, 101 
punishment for default, 155 
abrogation of duel, 176 
hot water ordeal, 248 
red-hot iron ordeal, 257 
conditions of oi'deal, 336«. 
early use of torture, 497 
Ichis regis and cnpituli, 146 
Idol-water in Indian ordeal, 304 
lesnm^, or accusatorial oath, 27n. 
Illinois, bier-right in, 323 
Imagination, power of, in ordeals, 344 
Imbrico of Augsburg perishes by 

the Eucharist, 310 

Impartiality in ordeals, rules for, 353 

Imprecations, use of, ia Assyria, 227 

Independence of the freeman, 16, 391 

India, single combat in, 96 

use of ordeals in, 234 

hot water ordeal in, 249 

red-hot iron ordeal, 254 

fire ordeal in, 277 

relics tested by, 277 

ordeal of cold water, 281 

of balance, 294 

of endurance, 299 

of consecrated rice, 303 

of the lot, 311 

conditions of, 334 

as punishment, 339, 344 

torture not used, 373 

ordeals of pre-Aryan races, 225 

Infamous men, ordeal compulsory 

on, 340 

witnesses, torture of, 470 

Infamy inflicted on champions, 16S 

Informers, liability of, in Roman 

law, 381, .387 

in Wisigothic law, 401 

Innocent, the, condemned for pre- 
vious misdeeds, 351 
convicted by torture, 

469, 478, 483 
Innocent I. deprecates torture, 419 

Innocent II. prescribes compurga- 
tion, 57 
prohibits ecclesiastical duels, 141 
Innocent III. modifies conjuratorial 

oath, 66 

prescribes compurgation for 
heresy, 81 



538 



INDEX. 



Innocent III. — 

explains condemnation of the 

innocent, 127 

prohibits ecclesiastical duels, 141 

condemns hot water ordeal, 24S 

prohibits the ordeal, 363 

Innocent IV. releases church of 

Notre Dame from duel, 143 

prohibits ecclesiastical duels, 144 

directs the use of torture, 425 

Inquest, torture not used in, 441 

procedure in, 452 

Inquest of Fame, 65 

Inquisition, compurgation used by, ' 81 

use of ordeal on heretics, 363 

its influence on Spanish law, 408 

use of torture in, 425 

secrecy of proceedings, 426 

cruelty of, 427 

used in trials of Templars, 427 

denies counsel to accused, 428 

influence of, on use of torture, 451 

Inquisition of State, in Venice, 448 

Inquisition-process, torture used in; 441 

Inquisitorial process, not used in 

Spain, 410 

development of, 4.51 

unlawful in England, 500 

introduced under Tudors, 503 

still used in Germany, 518 

Inscription of accusers in Rome, 

■ 381, 387 
Instruments of torture, number of, 

iS3n. 
International questions, duel in, pro- 
hibited by Charlemagne, 11 
frequently employed subse- 
quently, 120 
Inundation of 1219 caused by ordeal, 365 
Invalids, questions as to their tor- 
ture, 472 
Ireland, responsibility of kindred 

in, 18 

tribal responsibility, 39n. 

judicial duel, 100 

miraculous guidance of judg- 
ments, 238 
ordeal of boiling water, 239 
ordeal of lot, 312 
ordeal of oath, 326 
torture not used, 392 
Iron bands, punishment of, 329 
Iron, red-hot, ordeal of, 252 
in Sweden, 89 
among Arabs, 231 
among Parsis, 233 
in Greece, 236 
Irregular ordeals, 328 
Isidor of Seville, his theory of oath, 29«.. 
Islam, oaths and ordeals in, 229 
Italy — see also Lumhard Law, 
Sicilian Gcnatitutions, etc. 
judicial duel imposed on all 

races, 121 

use of champions in, 168 

duel prohibited in 1505, 209 

iron ordeal in 1329, 263 

ordeal of cross in, 297 

commencement of tortiire in, 423 
nobles not exempt from torture, 

465 «. 



Italy- 
abolition of torture, 522 

Ivo of Chartres, his doubts as to 

compurgation, 57 

refuses to order the duel, 145 

his opinion as to ordeal, 349, 358 
claims exemption for clerks, .358 

on extorted confessions, 420 

Ives, St., intercession by, 330». 



JACINTUS of Ravenna, his ordeal, 215 
James I. approves cold water 

ordeal, 29] 

on bier-right, 318 

superintends torture, 509n. 

Janssen, Hendrick, torture of, in 

1803, 513 

Japan, judicial duel in, 99ii. 

ordeal in, • 221 

Jardine on torture in England, 503 

Jarnac and Chastaigneraye, duel 

of, 98 

Jayme I. of Aragon prohibits the 

duel, 187 

prohibits the ordeal, 366 

Jeanne de Bourgogne offers the 

duel, 200 

Jfffaite.ed, 89 

Jerome, St., miracle in a case of tor- 
ture, 381,390 
Jerusalem, Assises de, 69 
use of lawyers recommended, 65?i. 
rejection of negative proofs, 68 
compurgation not alluded to, • 69 
women and clerks not i-eceived 

as witnesses, 112 

minimum limit on duel, 135 

discriminations of race in duel, 138 
regulations to procure cham- 
pions, 139 
duel not irsed in admiralty 

court, 148 

penalties of defeated combat, 

ants, 152 

special penalty for women, 154 

swearing of champions, 162 

defeated champion hanged, 163 

limitations on champions in 

criminal cases, 171 

red-hot iron ordeal, 257, 262 

conditions of ordeal, 337 

torture introduced, 422 

Jew, miraculous conviction of, 184 

Jews should not be forced to com- 

purgation, 84 

oaths among, 26 

liable to duel, 136, 138 

ordeals among, 228 

ordeal used to convert, 260 

belief in bleeding of murdered 

corpse, 316 

convicted by bier-right, 316 

torture not used by, 372 

of England, torture of, by King 

John, 418 

case of torture of, 433 

cruel punishment of, 444n. 

Johanan ben Saccai, 229 

John XII. declines the duel, 120 

his crimes, 359/». 



INDEX, 



539 



John of France abrogates compur- 
gation in Lille, 73n. 
John of England tortures Jews, 41S 
John of Coldingham, 170 
John of Avranches on the duel, 3.58 
Johnson's case, in 1S24, 344 
Jonah, use of lot, 229 
Joscelin of Die, conviction of, 325 
Jrvem Inpi'lfim jurare, 237 
Judaism, oaths in, 26 
Judges, challenging of, 113 
penalty when vanquished, 116 
inspiration of, in Islam, 230 
among Feinl, 238 
cruelty of, in Bohemia, 415 
cannot he witnesses, 449 
abuse of torture by, in Spain, 

405, 407, 409 

in Germany, 468, 475, 479 

liability of, in Wisigothic law, 402 

in France, " 454 

in Germany, 462, 468, 481 

discretion of, as to torture, 

466, 480, 484, 486 

as to torture of witnesses, 470 

influence of torture system on, 481 

exempt from torture in Naples, 465w. 

Judgment of God, 94, 217 

Judgments, guarantee of, among 

Feini, 238 

Judicialduel, 93 

Judicdumftrri, 252 

Jvdicinm aqhcefrigidcB, 279 

Judicium crucis, 296 

Judirinm offce, 299 

Judith of Northumberland tests relic 

by fire, 278 

J7tifie, 252, 262 

Julius II., Pope, prohibits the duel, 209 
Jura de juicio, 22w. 

Juramentuni supermrrtutim, 52 

Jtiratnres — see Compurgators. 
Jury-trial originates in compurga- 
tion, 45 
in Normandy, 133 
obviates use of torture, 

497, 498, 499, 500 
Jus Provinciale Alamanuicum— see 

S'^'hwabenspitgd. 
Jus Provinciale Saxonicum — see 

Sachne n Spiegel. 
Jusiers, church of, privileges grant- 
ed to, 143 
Jusjurandum necesssarium and in 

j^ire, 2\n. 

Justinian, his laws as to torture, 381 

enforces the talin, 381 

commands torture of witnesses, 382 



KALABAKESE ordeals, 221 

Kalabar-nut, ordeal of, 222 

Kayser-Recht, limitations on duel, 181 
denounces the duel, 186 

torture not used in, 421 

Keller, Friedrich, on torture, 512 

Ktiure de Bruges, 180 

Kfyser Retenn, torture used in, 499n.. 
Khonds, ordeals among, 225 

Kilty, Chancellor, on duel in Mary- 
land, 216 



Kinraid, witch-pricking by, 507 

Kindred, solidarity of, 13, 18 

evidence of, 36n. 

as compurgators, 36, 38, 42, 45, 47 
as champi ms, 1.58 

duels forbidden between, 129, 191 
not received as witnesses in 

Spain, 407 

witness not tortured against, 471 
King V. Williams, ^ 80 

Kinswoman, punishment of, 19 

Kluntz, Peter, on Eucharist ordeal, 311 
Kmetho, or Polish serf, 16n. 

Knighthood, championship required 

of, 165 

Knipschild on privileges of nobility, 465 
Knox, John, on challenges of Both- 
well, 211 
Koran, multiple oaths in, 43». 



T A CHASTAIGNERAYE and Jar- 
Ij nac, duel of, 98 

Ladislas of Hungary, laws of, 243 

Lambert of Tuscany, case of, 118 

Lambert of Redenberg, case of, 319 

Lamoignon on counsel for accused, 456 
Lance of St. Andrew, case of, 270 

Lancellotti defines use of compurga- 
tion, 85 
Lands acquired by judicial duel, 102 

disputed, ordeal of cross in cases 
of, 296, 299 

Lang, J. P., on cold water ordeal, 292 
Languedoc, cruelty of Inquisition in, 427 

charter of 1315, 436 

Laon, robbery of church of, 126, 285, 416 
Lard, use of, to detect witches, 468 

Lascaris, Theod., torture invented 

by, 491n. 

La Seauve, Abbey of, fees for ordeals 

granted to, 360 

Lateran, IV. Council, forbids the 

duel, 141, 184 

prohibits the ordeal, 218, 363 

Latins, ordeal among, 237 

Lausanne, duels in ecclesiastical 

court, 145 

Lawyers, advantage of employing, 65 

influence of, in Germany, 463n. 

Laymen, sin of shaving by, 351 

Leather, dress of, in duel, 206 

Lecky on witcli-trials and torture, 

507, .509 
Legal questions settled by duel, 119, 121 

procedure uselesin witch-trials, 492 
Legitimacy, ordeal for, among Celts, 239 

miraculous pi'oof of, 333 

Le Gris and Carrouges, duel of, 202 

Lemariuier, Jehan, case of, 456n. 

Lemgow, witch trials in, in 1583, 288 

Length of rope in cold water ordeal, 280 
Lent, ordeals allowed during, 356 

Leo III. tried by Charlemagne, .33 

cold water ordeal attributed to, 282 
Leo IV. condemns the ordeal, 355 

Leper, cure of, by St. Martin, 331 

Lepers, battle not allowed to, 129 

Lese-majestti, first allusion to in 

France, 437 

in England, 50ln. 



540 



INDEX. 



Lessingon, case of church of, 110 

Leudastes, case of, 396 

Lex apparens ox paribilis, 13i 

Lex Oundebalda, 103 

Lex M onachorum, 357 

Lex Talionis, 150 

. enforced in Rome, 381 

even for slaves, 387 

in Wisigothic lavF, 401 

in Spanish law, 406 

abandoned in torture-process, 452 
Libo and Silanus, prosecution of, 384 
Lie, the, not necessary in duel, 202 

Liege, case of torture in, 447 

Liege, Bishop of, claims the duel, 144 
Liguaire, St., relics of, bestowed by- 
lot, 314 
Lilburne and Claxton, case of, 218 
Lille, responsibility of kindred in, 19 
compurgation in, 72 
torture not used in, 439 
Lillebonne, synod of, on ecclesias- 
tical duellists, 140 
Limitations on judicial duel, 128, 133 
of torture disregarded, 480, 484 
Lindenbruck on the corsnajd, 302 
Lindisfarne, story of priest of, 305 
Lioba, St., of Bistlioffsheim, 297 
Lithuania, judicial duel in, 108 
Litus can prove freedom by duel, 135 
Liutgarda, case of, 119 
Liutprand, his law as to conjurators, 5S 
seeks to abolish judicial duel, 105 
Liutprand. Bishop, his recourse to 

the duel, 120 

Liutprand of Milan undergoes fire 

ordeal, 268 

Livingston, Dr., on African ordeals, 222 
Livonia, ordeal introduced in, 366 

Lombard law on compurgation, 45 

selection of compurgators, 47 

limitation of compurgation, 48 

compurg. in default of evidence, 50n. 
form of oath-taking, b') 

foimula of compurgatorial oath, 53 
perjury in compurgation, 58 

witnesses compared with conju- 
rators, 58 
duel in place of compurgation, 62 
persistent use of duel, 104 
punishment for refusing duel, 122 
duel not used in cases of treason, 132 
limitations on duel, 134 
slaves entitled to duel, 135 
oaths required of combatants, 149w. 
penalty of defeated combatants, 150 
kinsmen as champions, 159 
\ise of champions universal, 160 
use of champions restricted, 168 
freedmen as champions, 165 
hot-water ordeal, 248 
water ordeals for slaves, 284 
duel in witch-trials, 2Sln. 
ordeal of cross, 298 
no allusion to torture, 393 
Lombardy, use of torture in, 425 
nobles not exempt from torture, 465ra. 
Long Parliament fails to abrogate 

duel, ^ 214 

Lorraine, dukes of, their right to pre- 
side over duel, 208 



23n. 

131W. 

311 

228 
231 
237 

217 



Lorris, purgatorial oaths in, 

evasion of duel in, 
Lot, ordeal of, 

among Hebrews, 
use of, in Islam, 
in Greece, 
Lothair and Teutberga, 

killed by Eucharist ordeal, 308 

Lothair I., compurgation in default 

of evidence, 50w.. 

prescribes form of oath-taking, 55 

condemns cold water ordeal, 283 

prohibits ordeal of cross, 298 

Lothair II., his treatment of Erfurt 

and Halle, 417 

Loudon, ordeals as punishment in, .340 

Louis-le-Dfcbonnaire, tries Pascal I., 34 

on selection of compurgators, 47 

compurg. in default of evidence, 50n,. 

condemns cold water ordeal, 283 

on ordeal of cross, 297, 298 

his laws on holding courts, 413 

Louis II., Emperor, compurgation in 

default of evidence, 50n 

Louis IV., Emperor, exempts Dort- 
mund from duel, 182 
punishes Ueberlingen, . 317 
Louis d'Outremer offers duel to 

Hugh-le-Grand, 120 

Louis VI. (France), his charters to 

serfs, 113n. 

Louis VII., his charter to Lorris, 23n.. 

exemptions from duel granted 

by, 143 

Louis VIII. his charter to Crespy, 179 

Louis IX., legislation as to oaths, 22n. 

on statements by advocates, 65n. 

does not recognize compurgation, 70 

his legislation on the duel, 

116, 129, 190 
condemns Eng. de Coucy, ] gin- 

torture not used by, 429 

on criminal procedure, 452 

Louis X. struggles to abolish duel, 20O 
orders cold water ordeal for 

witches, 287 

establishes use of torture, 436 

Louis XIV. reforms the criminal pro- 
cedure, 456 
Louis XVI. abolishes torture, .520 
Lourdes, duel restricted in, 178 
Louvain, buri^her of, challenged by 

Bishop of Liege, 144 

Lower Empire, ordeals under, 213 

iron ordeal in, 263 

Lowes, torture used in trial of, 507w. 
Loy Gombette, 103 

Lubeck, use of torture in, 424 

Lucius III. pronounces ordeal void, 362 
Luitzes and Saxons, quarrels of, 121 

Lycanthrophy, torture in, 485 

Lyons, Archbishop of, uses ordeal 
on heretics 357 



MACPHERSON on ordeals in 
Orissa. 225 

Madagascar, ordeal in, 224 

Madrid, Fuero of, compurgation in, d^n. 
Magi test by fire the swaddling 
cloth of Christ, 278 



INDEX. 



541 



Magicians, loss of weight by, 287 

tortured in Rome, 3S0 

Magna Charta, no reference to tor- 
ture in, 501 
Magnus of Norway, on selection of 

compurgators, 46 

form of compurgatorial oath, ot 

Mahomet's accusation of Ayesha, i3n. 
use of oaths by, 229 

Mahuot and Plouvier, duel of, 20.5 

Maine, Sir H., on social organiza- 
tion, lo 
Mainier of Paris, on Roman law, G7n. 
Mainz, Council of, in £48, on iron 

ordeal, 2o7 

in S8S and 1028, prescribe the 
ordeal, 356 

Mainz, Templars offer iron ordeal, 263 
Majorca, duel prohibited in, 187 

ordeal prohibited in, 366 

Malliim, or judicial assembly, 16 

held in public, 413 

Manasses of Rheims, case of, 57 

' Manava Dharma Sastra — see Manu. 
Maudeure, ordeal of staff in, 315 

Manicheans, ordeal used on, 357 

JIanu, Laws of, village communi- 
ties in, 14 
oaths prescribed in. 24 
ordeals in, 234 
character of evidence, 373 
Mausuetus, St., intercession by, 32^n. 
Marc, value of, ' ]31n. 
Marcus Aurelius, exemptions from 

torture by, 379 

Marculfus, selection of compurga- 
tors, 40 
Maresca, Marc Antonio, case of, 459 
Maritime law, its derivation from 

Roman, 148 

Marmoutiers, case of Abbey of, 352 

Marriages, cousangainity in, decid- 
ed by ordeal, 355 
Marschalck, case of, 151 
Marsigli on bier-right, 317 
on abuse of torture, 468 
his torture of sleeplessness, 483 
condemns deceit to prisoners, 495». 
Mnrter-kainrncr, or toi'ture-cham- 

ber, 472 

Martial, St., miracle wrought by, 321 
Martin of Austrasia, his death, 28 

Martin, St., his superiority to St. 

Germain, 331 

his cope, used to swear on, o.> 

Mary, Empress, case of, 258 

Marv of Scotland prevents Botli- 

well's duel, 211 

Maryland, wager of law in, 81 

appeal of death in, 216 

Massachusetts, appeal of death in, 

214, 216 
Masters, slaves not tortured against, 

383, 406 
except in cases of majes- 

tatis, 385 

other exceptions, 385 

not allowed to offer slaves iu 

evidence, 386 

Mathieu-le-Voyer, his suit with the 

king, 193 



Matthew of Westminster on prohi- 
bition of ordeal in England, 364 
Maubourguet. dnel i-estricted in, 180 
Maur, St., relics of, 325 
Maximilian 1. restricts compurga- 
tion, 75 
1 Maximus on evidence of slaves, 385 
I Mazdeism, responsibility of kindred 

in, * 14 

ordeals in, 232 

torture not prescribed in, 373 

' Mecklenburg, ordeal introduced in, 243 

Men, red-hot iron ordeal for, , 257 

Menelans and Paris, duel between, 99 

\ Mercantile law, duel not used in, 117 

i Mercantile cases, torture in, 477 

■ Merchants, multiple oaths by, 27 

I exempted from duel, 180 

Merida, Council of, iu 606, on tor- 

I ture, 491 

I Meroviogia-n-s, torture under the, 396 

! Merseburg, robbers convicted by 

I Cham lions, 169 

' Metz, duel in ecclesiastical court, 147 

: Michael Paleologus, iron ordeal for, 263 

Milan, fire ordeal in, . 26S 

I thief convicted by oath on relics, 323 

; Miles the Stammerer, duel of, 127 

Milhaud, use of torture in, 440 

j Mindeu, bier-right in, 320 

i Minimum limit in judicial dnel, 129, 133 

I Mir, or Russian cammunal society, 1,5 

Miracles— 

for perjury ou relics, 30,324 

conviction of a Jew, ISt 

conviction of thief in China, 22S) 

acquittal of homicide in Islam, 231 
wrought by Ponce of Audaone, 250 
by St. Gengulphus, 251 

i bv St. Bertfand of Commiu- 

ges, 251, 326 

reversal of hot iron ordeal, 265 

of Eucharist, 305 

iu loosening bands of iron, 329 

in proving Catholic orthodoxy, 330 
wrought by St. Martin, 331 

convicts saved bv St. Nicholas 

and St. Olaf, " 332 

wrought by confession and re- 
pentance, 2t)l, 350 
constantly to be expected, 368 
Aroman accused of adultery pi-e- 

served by, 381 

in a case of torture, 415 

iModena, iron ordeal in 1329, 263 

Modestinus ou evidence under tor- 
ture, 388 
Mome d-i C'aP.n — a kind of t)rtare, 45-5 
Monnchorum Lex, 357 
Monasteries, torture in, 497 
Monks as duellists, 141 
ordeals claimed by, 357 
torture of, in England, 505 
Montaigne denounces torture, oil 
Moutafgis, story of dog of, 202 
Monte Casino, monks of, test relic 

by fire, 278 

Mouteil on professional champions, 171 
Montesquieu, his error as to the 

Salic Law, 331, 347 

on use of torture, 518 



46 



542 



INDEX. 



Mont-Ogier, case of torture in, 433 

Montpellier, consent of both parties 

requisite for duel, 138 

for ordeal, 337 

Moravia, judicial duel in, 108 

Mosaic Law, oaths in, 26 

ordeal in, 2'28 

absence of torture in, 372 

Moslem, oaths among, 277A., -iSn., 230 

ordeal among, 231 

Mozarabic liturgy preserved by 

duel, 123 

triumphs in fire ordeal, 274 

Mstislas Davidovichjhis treaty with 

Riga, 181 

Muh-Wang on Divine government, 219 
Multiple oaths, 27 

Municipal champions, 174 

Muntaner, his account of Pedro III. 97 
Muratori on cold water ordeal, 293 

Murder, appeal of, 212, 216 

detected by bleeding of corpse, 315 
Murray, James, challenges Both- 
well, 211 
Mutilation of defeated champions, 164 
Myagh, Thomas, torture of, uOon. 
Myrc, John, instructions to priests, 212 



328 
206 



IKJAGA used as ordeal, 
J-V Nails pared in duel, 
Namur, State Council of, refuses to 

prohibit duel, 210 

Naples — see Sicilian Oon.<<titvtions. 

use of torture commenced in, 423 
punishment for suspicion in, 459 

exemptions from torture in, 465n. 
torture after confession in, 4767i. 
persistent use of torture in, 522 

Navarre and Castile, controversy 

between, 120 

Nebuchadnezzar presides at fire 

ordeal, 276 

Necromancers, red-hot iron in trial 

of, 355 

Neffn i kyn, or oaths of kindred, 39 

Nefvinge, or Danish jury, 498 

Negative proofs in Barbarian laws, 67 

not required in Roman law, 68 

rejected by mediaeval jurists, 68 

Nehring, J. C, on cold water ordeal, 292 

on bier-right, 321 

Nempdaiii, S"wedish juries, 499 

Nero, his peisecutions of Christians, 378 

Netherlands, compurgation in the, 76 

ordeal of balance iu the, 296 

bier-right in the, 3.22 

torture in, 460 

torture abolished in 1798, 513 

Newald on cold water ordeal, 288, 2S9 

New evidence, repetition of torture 

for, 457 

New Grenada, use of torture in, 469, 578 
New Hampshire, duel iu, 216 

New Jersey, bier-right in, 322 

New York, bier-right in 1824, 344 

Niam Niam, ordeals used by, 223 

Nicholas, St., saves a coudemned 

criminal, 332 

Nicholas I. relieves clerks from 
duel, 141 



Nicholas I. — 

forbids the duel, 183 

forbids use of torture, 419 

Nicholas, Aug., on abuse of torture, 489 

Kieuport, Laws of, compurgation iu 

default of evidence, oOn., 61 

duel not used in, 179 

iron ordeal in, 257 

Nithstong, 155 

Nobles privileged to use champions, 

171, 172 
liability of, to torture, 437, 440, 411 
exemption of, from torture, 

405, 408, 464, 465, 506 
and villeins, duels between, 133 

Nod-mfln, 42 

their oath, 55 

Nogent, fire test of St. Arnoirl's relic, 278 

Norgaud of Autun, case of, 54, 61 

Normandy, compurgation in, 73 

formula of compurgatorial oath, .53 
duel in default of jury verdict, 133 
minimum limit on duel, 134 

JeAvs subject to duel, 136 

penalties of defeated pleaders, 

149, 151 
of defeated champions, 164 

witnesses as champions, 161, 163 
prolonged existence of duel, 2^4 

conditions of ordeal, 837 

disappearance of ordeal, 365 

torture not used in 13th century, 429 
struggle to avoid torture, 437 

Normans, duel habitual among, 342n. 
and Saxons, duel between, 106 

Norsemen, form of oath used by, 25 

compurgation among, 32 

judges decide as to compurgation, 49 
compurgation set aside by duel, 56 
accusatorial conjurators, 87 

judicial dnel among, 101 

ordeal among, 210 

hot-water ordeal, 335 

torture used by, 396 

Northampton, assizes of, on the or- 
deal, 283, .348 

Norway, compurgation in default of 

evidence, 50n. 

form of compurgatorial oath, .54 

accusatorial conjurators, 90 

abolition of duel, 176 

ordeal prohibited iu, 365 

Notre Dame de Paris, church of, and 
the duel, 143, 146 

Nuns, torture of, 497 

Niirnberg exempted from duel, 181 







ATH and its accessories, 
importance of, in Roman law, 
nature of, 
sanctions of, 
multiple, 
of ecclesiastics, 
valuation of, among Anglo-Sax 

ons, 
valuation of, in Bordeaux, 
compurgatorial, formula of, 
modified by the church, 
not allowed to perjurers, 
required of parties to the duel, 



20 
21 
24 
25 
27 
31n. 

44 



310 
148 



INDEX. 



543 



Oath required— 

of champions, 
of knighthood, 
as ordeals, 

among Khonds, 

in Islam, 
theory of, in India, 
not used in China, 



161 
105 
30, 323 
225 
230 
234 
219 



guarantees of. among Greeks, 236 
use of, in Rome, 237 

of master releases slave from or- 
deal, 339 
of clergy sufficient for acquittal, 3)S 
exacted of the tortured, 487 
Odin tortured by tieirrod, 396 
Odurn wood, ordeal of, 223 
Oelsner on bier-right, 321 
OfFaj judicium, 299 
Oflicial champions, 174 
Oil, boiling, ordeal of, in Rajmahal, 226 
in India, 249 
Olaf, St., undergoes fire ordeal, 261 
his impartiality questioned, 3o8 
saves a condemned criminal, 332 
his relics tested by fire, 278 
Olaf Tryggvesson's duel with Alfin, 

106ra. 
Olaus Magnus on Russian torture, 450 
Oldeukop on cold water ordeal, 290 

Olim, compurgation in, 70 

cases of torture in, 432 

Omer, St., intercession by, .330 

Oodeypur, red-hot iron ordeal used in 

1 873, 255 

Oppert on language of A vesta, 233w. 
Oracular ordeals in Egypt, 227 

Ordeal, the, 217 

of oath, 30 

to confirm compurgation, 45, 56 

for conjurators, 59 

as substitute for duel, 140n. 

nae of, after torture, 422 

Ordeal-nut, use of, 222 

Ordenamiento de Alcala, 189, 407 

Ordonnance of 12-54, torture pre- 
scribed by, 428, 431 
Orleans, limitations on duel, 134 
Orleans, Bishop of, claims jurisdic- 
tion of duel, 146 
Oschersleben, torture at, in 175?, 515 
Ostrogoths, judicial duel not em- 
ployed by, 107 
use of torture by, 3"8 
Oswyn, relics of, tested by fire, 278 
Othlonus, miracle related by, 351 
Otho I. encourages use of duel, 119 
punishes refusal of duel, 122 
Oilio It. restricts compurgation, 62 
substitutes compurgation, 109 
minimum limit for duel, 134 
introduction of duel ascribed to 

him, 121 

restricts use of champions, 168 

Otho III. executes his wife, 258 

on degradation of the papacy, 359». 
Otho of Bavaria, case of, 123 

Oudewater, ordeal of balance in, 296 

Outlaws tortured in Iceland, 498 

Owner, slaves not tortured against, 383 



PALENCIA, Council of, in 1322, pro- 
hibits ordeal, 366 
Pallor justifies torture, 467 
Panifs cmjuratii, 299 
Papacy, condition of in X. and XI. 

centuries, 359 

its opposition to the duel, 183 

its opposition to the ordeal, .355, 362 

Papal States, duel prohibited in 1.505, 209 

Paribilif) Lex, 134 

Parikyah or Indian ordeal, 235 

Paris, church of, and the duel, 142, 146 

university of, its privileges, 363 

Parlenient of Paris, growth of its 

jurisdiction, 201 

seeks to abrogate duel, 198 

final decisions as to duel, 202, 204 

early records of torture in, 432 

Parliament declines to abrogate duel, 214 

debate on appeal of death, 214 

Parsism — see Mazdeism. 

Partidas, Las Siete, 69 

regulations on duel, 1S8 

negative proofs rejected, 366 

torture system in, 404 

Pascal I., purgatorial oath of, 34 

Pnte.rfamUias-, torture of his slaves 

by, 386 

Paternity decided by conjurators, 51 
decided by ordeal, 2.59 

Patrce, 14 

Patrician ordeals, 283 

Patr.cians exempt from torture, 379 

Patrick, St., endeavors to repress the 

duel, 100 

jaw-boue of, 326 

Patron and clients, in Rome, 15 

Patron, his freedmen not tortured 

against him, 384 

Paul, St., his Roman citizenship, 381 
Paulus Jovius on Russian torture, 4-50 
Payment, rate of, to champions, 174 

Peacham's case, use of torture in, 504 
Peacock's case, use of torture in, 504 
Peasants entitled to duel, 135 

champions refused to, 171 

Pedro III. of Aragon challenged by 

Charles of Anjou, 97 

Pedro the Cruel prescribes compur- 
gation, 74 
Ptine forf-e. et dure, .510 
Pelagius I., purgatorial oath of, 27 
Penniwinkis, torture of, .509rt. 
Pennsylvania, bier-right in, 322 
divining rod in, 370n. 
Pepin-le-Bref prescx'ibes ordeal of 

cross, 296 

Perigord, charter of, in 1319, 438 

Perpetuity of superstition, 369 

Personification of balance, 294 

of poison, 327 

Persians, ancient, ordeals among, 232 

Perjury, degrees of, 28 

extenuation of, 29 

punishment consequent on, .30, 58 

judicial duel nsed to suppress, 109 

defeat in duel equivalent to, 149 

rerribution for, in India, 234 

Perjurers, o "deals obligatory on, 340 

Petm-, St., intercession by, 329 



544 



INDEX, 



Peter, Bishop, case of, iu 794, Gl , 838 

Peter Bartliolomevv and lauce of St. 

Andrew, 270 

Peter Cantor argues against duel, 

145, 1S3 
against ordeal, 2T2, 349, 362 

Petrus Igneus, case of, 267 

Philip of Alsace, his laws of Ghent 

and Nieuport, 179 

Philip the slave, torture of, 389 

Philip Augustus regulates weapons 

in duel, 157 

enforces the talio iu duel, 151 

limits the ordeal, 363 

his charter to Tournay, 179 

Philippe le-Hardi presides at a due], 19.5 
Philippi-le-Bel admits compurgation, 71 
his legislation on duel, 19o 

proves cruelty of inquisition, 427 
his prosecution of Templars, 427 

Philippe-le-Long. his legal reforms, 201 
on secrecy of criminal proceed- 
ings, 438 
Philippe de Valois restricts right of 

appeal, 201 

Philippe-le-Bon abolishes duel in 

Burgundy, -Ot 

Philip II. introduces torture in Ne- 
therlands, -!61 
Philotas, torture of, 374, 391) 
Phocion threatened Avitli torture, 374 
Phro.trioe, 1-1 
Picavdy, duel customary in 1.325, 201 
Pierre de Fontaines, his opinion of 

duel, 195 

Pietro de Pa via convicted bv fire 

ordeal, ' 267 

Pike on absence of duel among An- 
glo-Saxons, 10671. 
on fate of approvers, 213w . 
Pisa, charter of, 177 
Piso, conspiracy of, 379 
Pius IV. uses torture in trial of Ca- 

rafifa, 470 

Plain tifi", ordeal for, in India, 235 

Plantagenets, use of torture by, 502 

Plead, refusal to, torture for, 470 

peine forte et dure for, 510n. 

Pleaders obliged to indemnify wit- 
nesses, 113 
Plebeian ordeals, 283, 346 
Ploughshares, red-hot, ordeal of, 252 
Plouvier and Mahuot, duel of, 205 
Poison ordeal, in Greece, 236 
in India, 327 
Poitiers obtains the relics of St. Li- 

guaire, 314 

Poix, Seigneur de, case of, 71 

Poland, wer-gild in, 16 

compurgation nsed in ISth cent., 77 

judicial duel in, 108 

abolished in 14th cent., 210 

use of torture in, 449 

Political offences, torture for, in 

Greece, 374 

Polus, Philippe, case of, 492 

Pomerania, judicial duel in, 108 

Ponce of Andaone, miracle by, 250 

Poor Men of Lyons, prosecution of, 426 
Poppo, Bishop, iron ordeal of. 260 

Prcejuramen tnw, 88 



Prayer, use of, in j udicial duel, 128 

Pre-Aryans of India, ordeals among, 225 
Precautions used iu ordeal, 354 

Pregnant women not tortured, 387, 405, 
40i<, 463, 472 
except in Iceland, 497 

Prerogative, royal, torture under, 503 
Presles, Eaoul de, case of, 435 

Prevarication, torture of witnesses 

for, 470 

Pricking of witches, 507 

Priests, see Ec^lesinMioii. 

unchaste, warnings to, 305 

Proems ordinaire and exlranrdin- 

aire, 441 

Procuress, ordeal obligatory on, 341 

Professional chHm]);ons, 166 

Profits from jurisdiction of duel, 192 
of ordeal, 360 

Prosecutor to be present at ordeal, 354 
Protestant clergy, torture of, 466 

Protestants reject the Eucharist or- 
deal, 311 
Providence, interposition of, 218 
Prussia, ordeal iutrodnced in, 366 
restriction of torture in, 514 
retention of torture iu, 517 
Prussia, West, cold water ordeal in 

174'). £93 

Pselli, test of legitimacy amoug^, 23971. 
Publicity of legal proceedings in 9th 

century, 413 

Punishment for evading duel, 131 

for defeat in duel, 150 

for default, 155, 206, 207 

for retraction of confession, 486 

ordeal regarded as, 339 

torture used as, 417 

Purgatin eanoni^a, 31 

Purgatorial power of oath, 21 

Purnkeh , or Indian ordeal, 235 

Pyrrhus, his miraculous toe, 277 



438 
457 
520 
454 
387 
499 
521 

455 



QUERCY, regulation of torture in, 
QufStinn pr^pnratdre, 454, 

abolished iu 1780, 
Question rle/initive or pr Salable, 
not allowed in Eome, 
used iu Denmark, 
abolished in France in 178S, 
Question ordinaii e and extraordin- 

airf, 
Quiutilian on evidence under tor- 
ture, 
Quintius Curtius on torture, 



RAG U ALP, torture not used in laws 

of, 499 

Raitfi, or Welsh compurgation, 36 

numbers required iu, 38, 43 

character of compurgators, 42 

overrides evidence, 51 

form of oath in, 55 
Kainer, case of, at Council of St. 

Baseul, 344 

Rajniahal, Hill-tribes of, 14 

ordeals among, 225, 256 

invocation of salt 303 

Ranutvana, ordeal in, 234 



INDEX 



545 



Ramgur, ordeal of endurance iu, 299 
Rauic, regulations concerning, iu the 

due], 129, 136 

Eaoul de Presles, torture of, 435 

Eaoul de Caen ou the lance of St. 

Andrew, 271w. 

Eatiflcation of evidence required, 471 

of confession, 404, 48.5, 48^ 

Eatisbon, compurgation in, 75 

exempted from duel, 181 

Diet of, adopts Caroline Consii- 

tutious, ^63 

Eaymond of Agiles on lance of St. 

Andrew, 271n. 

Eaymond Bernard of Foix, duel of, 19 3 
Kecords of court, altei'ed by the duel, 1 2 > 
Eed-hot iron ordeal, 2.52 

Eed- water, ordeal of, 222 

Eegiuger challenged by Hsnry IV. 123 
Eeims, legislation as to oaths, 22n. 

liability of witnesses to duel. 111 
duels in ecclesiastical court, 145 

restrictions on use of champions, 172 
Eeims, councils of, pi-escribe the or- 
deal, 357, 35S 
Eeinward of Minden, avenged by 

bier right, ^ .320 

Eelics u.sed for oaths, 27 

iu Wales, 29 

not required at the gallows, .500 

veneration for in Wales, 3l7i. 

tested by fire ordeal, 277 

oaths on, as ordeals, 30, 324 

Eeligion, misguided influence of, 523 

Keligious rites in ordeal, 235, 245 

Eemy of Dorchester, case of, 259 

Eepentance condones crime, 276 

etfect of, on ordeal, 350 

annuls conviction by ordeal, 261 

Eepetition of torture prohibited, 457 

how justified, 484 

Ee;iresentation in estates determined 

by duel, 119 

Eepiisals allowed by law, 16 

Resxrvfi desi preiive-f, torture with, 458 
Eesponsibility of accusers, 1.50, 381, 3S7, 
401, 406 
of conjurators, 60 

of judges, 402, 454, 462, 468, 481 

Eestrictions on judicial duel, 128, 178 
on torture, 406, 464 

Eesults of ordeal doubtful, 353 

Eetraction of confesion under tor- 
ture, 404, 433, 442, 462, 4S5 
Eeversal of judgment by duel, 114 
Ehodians, torture customary, 374 
Eice, ordeal of, in India, 3 '3 
Eichard I. at thefuneialof Henry II., 316 
torture of his page, 416 
Eichard 11. challenges Charles VI., 95 
Eicharda, Empress, offers iron or- 
deal, 257 
Eichstich Landrecht, on use of law- 
yers, 65 
ordeal obligatory in 2d accusa- 
tions, .341 
ordeal maintains its place in, 366 
torture not used iu, 421 
Eickius on hot water ordeal, 249 
on cold water ordeal, 290 
on ordeal of balance, 295 



46 



Eickius— 

on torture in witch trials, 492, 494 
Eiculfus, case of torture of, o97 

Eiea, merchants of, relieved from 

duel in Eussia, 181 

Eipuariau Law, duel in, 104, 109 

ordeal of fire in, 267 

ordeal of lot, 312 

ordeal in default of compurga- 
tion, 338 
torture not alluded to, 392 
Riom, restrictioa on duel in, 179 
Eisbach, Council of, on iron ordeal, 256 
Eites, sacred, in ordeals, 235, 245 
Eobters not admitted as champions, 165 
Eobert the Pious, his notion of per- 

j ury, 30 

prohibits Eucharist ordeal, 309 

Eobert Curthose and his children, 259 
Eobert III. (Scotland) limits duel, 210 
Eodolph I. limits the duel, 181, 187 

objects to use of torture, 417 

Eodolph 11. confirms privilege re- 

speccing duel, 208 

Eodriguez, Juan, case of, 469 

Eoger of Naples, his charter to Bari, 178 
Eouie, social organization in, 15 

oaths and ordeals in, 237 

priests relieved from oaths in, 347i. 
influence of. over Goths, 106 

belief in King Pyrrhus's extra 
toe, 277 

Eome, Synod of, in 384, on use of tor- 
ture, 419 
Eoman citizenship, privileges of, 381 
Eoman Law, importance of oaths in, 21 
evidence of kindred rejected, 36n. 
influence of, 67 
its rapid spread in 12th century, 67n. 
its influence on feudalism, 185 
it undermines the duel, 186 
and the ordeals, 368 
torture system in, 376 
influence of, iu Spain, 405, 408 
in Germany, 463 
in Scotland, 508 
not admitted in En:,'laud, i02 
Eope, length of, in cold water or- 
deal, 280 
Eopes requisite iu legal torture, 483n. 
Eosbach, J. E. von, his treatise on 

Criminal Law, 464n. 

Eotharis, his laws on compurgation, 

45, 48 
seeks to limit judicial duel, 104 

Eotruda, St., her relics tested by 

fire, 279 

Scturier, discrimination against, in 

duel, 137 

Eoumania, recent use of torture, 622 

Eoyal court, no appeal from, 116 

R-ailLe, 1.50 

Eumor justifies torture, 466 

Euskaia Prawda — see Ruasia. 

Eussia, social organization in, 15 

wer-gild in, 15 

judicial duel in, 108 

rules as to weapons in duel, 158 

use of champions, 173 

foreign merchants exempted 

from duel, 181 



546 



INDEX. 



Eussia — 

duel in 17tli century, 210 

ordeal in, 240 

hot water ordeal in, 248 

red-hot iron ordeal, 257 

converted by fire ordeal, 272 

superstitious trials for theft, 2S^'4 

ordeal in spite of evidence, 336 

ordeal for accuser, 33S 

torture introduced in, 4o0 

disuse of torture in, 516 



SACHENTAGE, torture of, 418 
Sachsenspiegel — 

purgatorial oaths in, 22%. 

purgatorial oath of father, 39n. 

advantage of lawyers, 65n. 

compurgation in, 7o 

accusatorial coujurators, 89 

appeals from judgment, 117 
restrictions on duel, 129, 13i 

questions of rank in duel, 137 

penalty for defeat in duel, 153 

for default, 155 

regulation of weapons, 157 

right to employ champions, 160 

champions for the dead, 139 

disabilities of champions, 167 

hot water ordeal, 249 

hot iron ordeal, 256 
cold water ordeal for lands, 2S5 

conditions of ordeal, 334 
ordeal obligatory in second 

accusatious, 340 

torture not used in, 421 
Sachsische Weichbild — 

oath in reclaiming stolen horse, 25v . 

pui-gatorial oath of father, 39'?. 

juramentum snpermortuum, 52 

compurgation in, 7o 

accusatorial conjurators, 89 

restrictions on judicial duel, 129 

questions of rank in duel, 137 

penalty for defeat in duel, 153 

right to employ champions, 160 

duel only in criminal cases, 1 81 

ordeals for the dead, 2')Sn. 



ordeal obligatory in second ac- 



cusations. 341 

Sacmmentales — see Compurgators. 
Sacrifices to sauctify oaths, 25 

Safeguards provided for ordeal, 353 

Saga of Burnt Njal, 17 

of Viga Glum, 26 

of Egil Skallagrimsson, 102 

St. Andrews, witch-pool of, 292 

St. Aubin, Abbey of, case of, 142 

St. Baseul, Council of, .344 

St. Brieuc, Bishop of, claims juris- 
diction of duel, 147 
St. Clement of Pescara, Abbey of, 142 
St. Disier, torture not used in, 438 
St. Martin-des-Champs, jurisdiction 

of, 440, 442, 458 

Saint-Pe, Abbey of, fees for ordeals 

granted to, ' SevO 

St. Queutin, customs of, 114 

St Remy, Abbey of, claims jurisdic- 
tion of duel, 146 
St, Sergins, citsp of priory of, 127 



St. Seuiin, altar of, 90 

St. Vaast d'Arras, Abbey of, claims 

jurisdiction of duel, 146 

Saints, their interposition in behalf 

of ci'iminals, 332 

Salic Law, compux'gation in, 32 

number of compurgators re- 
quired, 40 
compurgation in default of evi- 
dence, 48 
perjury of conjurators, 59 
accusatorial conjurators, 86 
judicial duel, 103, 109 
ecclesiastical duels, 140 
ordeal, 240, 334 
hot-water ordeal, 248 
additions to, oi-deal of cross in, 298 
ordeal in default of compurga- 
tion, 338 
compounding for ordeals, 347 
torture only for slaves, 394 
Salt, imprecation of, in Kajmahal, 303 
Salvation, exclusive, deductions 

from, 523 

Salzburg, Council of, in 799, pre- 
scribes the ordeal, 355 
Samaritan legend of fire ordeal, 276 
Sancar, case of, in 1783, 255 
Sanche of G ascony uses water ordeal, 28 1 
Sanctio of Orleans escapes by com- 
purgation, 57 
Sanctorum sortes, 313 
Sand-bag used in duels, 213 
Sa7idf.mf.7id, or Danish jury, 498 
Sanila and Bera, duel of, 108 
Suiaad, 51 
Sarnga, poison used in ordeals, 327 
Sassy-bark, ordeal of, 222 
Satan, his aid to witches in ordeal, 

264, 288, 289, 293 
in torture, 492 

Satfinr, ordeal of, in Rajmahal, 226 

Sathee, or Indian Rice, used in or- 
deal, 303 
Savonarola offers the fire ordeal, 272 
Saxo Grammaticus asserts antiquity 

of duel, 101 

Saxon LaAV — see Sachftenfipiegel. 
Saxon Feudal Law, ordeal in, 337 

Saxons, judicial duel among, 105 

torture not used by, 393 

Saxons and Luitzes, quarrels of, 121 

Saxony, no defence allowed to ac- 
cused, 474 
disuse of torture in, 516 
Scales, ordeal of, 294 
Scandinavian races, torture in, 498 
Scavenger's Daughter, 505 
>§ tikingnh.en, 322 
Schwabenspiegel, purgatorial oaths 

in, 23 

juramentum superm,ortuum, 52 

compurgation in, 75 

accusatorial conjurators, 89 

Judgment of God, 94«. 

appeals from judgment, 117 

distinctions as to guilt, 126 

restrictions on judicial duel, 129 
questions of rank in duel, 137 

penalty for defeat in duel, 153 

for de."ault. 155 



N D E X , 



547 



Schwabenspieoel — 

cripples forced to present cham- 
pions, 189 
disabilities of champions, 167 
restrictions on champions, 169 
duels forbidden between kins- 
men, 191 
hot-water ordeal, 249 
iron ordeal, 253 
conditions of ordeal, 334, 337 
ordeal obligatory in second accu- 
sations, 341 
torture not used, 421 
Schweinfurth, Dr., on African or- 
deals, 223 
Schwerin, Synod of, denounces the 

duel, ]8.3?i. 

Scialoja on punishment for suspi- 
cion, 4")9 
Scipio endeavors to prevent duels, 100 
use of oath by, '237 
Scober, James, a witch-pricker, 507 
Scotland, selection of coinpurgatoi's, 41 
compurgation in default of evi- 
dence, 50w. 
alternative compurgation, 53 
compurgation in 14th century, 76 
restriction on champions, 170 
exemption from duel in towns, 180 
persistence of duel, 210 
water ordeals servile, 284 
cold water ordeal in witch-trials, 291 
bier-right, 318 
bribes'forbidden in ordeal, 354 
ordeal restricted, 364 
use of torture, 508 
torture a surplusage, 509 
abolished in 1709, 510 
Scott, Sir Walter, on bier-right, 318 
Scourge, use of, as torture, 409 
Scribonius on cold water ordeal, 288, 2S9 
Scuz iarn, 25 5 
Secrecy of inquisitorial process, 426, 452 
forbidden by Philippe-le-Long, 438 
evils of, 481 
Seota, 78 
Secular legislation against the ordeal, 363 
Security required of combatants, 155 
Sfffuidors, 48 
Seignorial jurisdiction exercised by 
church, 147 
courts, torture used by, 440 
Sejanus, plot of, 376 
Selection of defence allowed to ac- 
cused, 334 
Selingenstadt, council of, in 1023, 

prescribes the ordeal, 356 

Semites, use of ordeal among, 227 

use of torture among, 372 

Semperfri, privileges of, in duel, 137 
Senchus Mor — see Feini. 
Senlis, case of torture in, 432 

Sens, Archbishop of, employs Eu- 
charist ordeal, 309 
Serfs allowed to act as witnesses, 113 
cannot challenge a freeman, 129 
enfranchised to serve as wit- 
nesses, 135 
entitled to the duel, 136 
torture of, 431 
Serpent used as ordeal, 328 



Servia, judicial duel in, 108 

duel still legal in, 210 

Severus, Sept., his law as to evidence 

of slaves, 385 

Sexhendt^Tnan, iin. 

Seyne, Count of, case of, 82 

Shadrach, Meshach, and Abednego, 267 
Shakespeare on bleeding of mur- 
dered corpse, 316 
Shaving, sin of, in laymen, 351 

used in witch-trials, 493 

Shaw, Lieut., on Hill-tribes of Raj- 

mahal, 14 

Sheriff, his presence at ordeal re- 
quired, 354 
Shower-bath as punishment, 450». 

as torture, 451 ?>. 

Shrewsbury, Countess of, case of, 506 
Shrift of duelist, 212 

Shrines of saints, oaths on, 325 

Sicilian Constitutions, compurgation 



of 



not alluded to 

witnesses as champions, 

ordeals ridiculed in, 

introduction of torture in. 
Sierra Leone, ordeals in, 
Sigurd Thorlaksson, case of. 
Silence required of spectators 
duel, 

justifies torture, 
Silesia, judicial duel in, 
Simancason compurgation, 

on universal use of torture, 

condi-mns deceit, 
Simon de Montfort limits the duel 
Simony, trials for, 

compurgation in, 

ordeal denied in. 
Sin, expiation of, by confession, 
Single ordeals, 
Sita, trial of, by ordeal, 
Skevington's Daughter, 
Slcirfla, a Norse ofdeal, 
Skull of chimpanzee, ordeal of, 
Slavs, social oi'ganization among, 

persistence of compurgation, 

judicial duel used by, 

vitality of duel among, 

ordeal used by, 

ordeal introduced by the church, 243 
Slaves can prove freedom by duel, 135 

iron ordeal used for, 257 

water ordeals for, 283 

evidence of, in Eussia, 336«. 

ordeal for, 339 

torture of, in Greece, .374 

in Rome, 382 

not tortured against masters, 383 

except in cases of treason, 385 

protected by inscription, 3S7 

torture of, among Barbarians, 393 

among Ostrogoths, 398 

amoug Wisigoths, 400 

in Spain, 405, 409 

against masters, in Germany, 446 

in Iceland, 498 

Slavonia, use of compurgation in, 78 

Sleeplessness, torture of, see Vigils. 

Smith, Sir Thomas, on torture, .503 

Snake-fang, ordeal of, 221 

Soaper"s case of appeal of death, 216 



70 
162 
364 
423 
222 
353 

207 
463 
108 

82 

410 

495 

184 

54, 57 

85 
33371. 
350 
244 
234 
505 w, 
240 
221 

15 

77 
108 
210 
240 



548 



INDEX 



Soavo, municipal champion in, 174 

Sobarnoie Ulogeuiti, duel in the, 210 

torture in, 451 

Soest, Laws of, accusatorial conju- 

rators in, 89 

duel prohibited in, 179 

Soissons, Bishop of, uses ordeal on 

heretics, 356 

chapter of, claims jurisdiction of 

duel, 146, 198 

synod of, prescribes the ordeal, 356 
Soldier* exempted from torture by 

Diocletian, 379 

Solidarity of the family and tribe, 14 

Solidus, value of, 134w. 

Sorcery used by judges, 468 

Sorcerers, challenge between, 203 

loss of weight by, 287 

tortured in Rome, 380 

among Ostrogoths, 399 

among Franks, 411 

their confessions not evidence, 462 

S'-rtes sa/nctorum, 313 

Soto, or trial for adultery, 229 

Souabe, Miroirde, ordeal maintained 

in, 3^6 

South Carolina, wager of law in, SD 

duel legal in, 216 

Spain, legislation as to oaths, 22- . 

episcopal oaths in, 34??.. 

compurgaion in lUh century, 62 

in medieval codes, 69 

in Castile, 74 

negative proofs disallowed, 68 

duel u.«ed in early times, 100 

liturgical question settled by 

duel, 122 

. by ordeal of fire, 274 

distinctions of rank in duel, 138 

restriction on use of champions, 173 
limitations on duel, 188 

shape of ordeal iron, 253 

paternity decided by ordeal, 2')9 

ordeal in 16th cent., 311, 3r>l, 367 
use of lot, 314n. 

ordeal obligatory for abandoned 

women, 341 

disappearance of ordeal, 366 

us:e of torture, 403 

torture used for extortion, 418 

vigils off a torture, 4S9 

torture abolished in 1812, 518 

Spanish colonies, torture in, 468, 518 

Speculum Saxonicuui — see Sachsen- 

spugel. 
Speculum Suevicum — see Schwaben- 

spiegef. 
Spectators of duel, silence required 

of, 207 

Spiritual courts, duel in, 144 

Spoon, ordeal of, among Arabs, 231 

Spreuger on ordeals and duel, 187 

on iron ordeal, 2f>4 

cold water ordeal unknown to, 287 
on bier-right, 320 

recommends deceit, 495 

Staff, ordeal of, 345 

Standsfield, Philip, convicted by bier- 
right, 319 
Stai'A-oken, 240 
Staundford, Sir Wm. on the ordeal, 367 



Stephen V., ordeal condemned by, 343 
Stephen, St., laws of, 243 

grant to Abbey of Zala, 142 

Stocknfiffn, 46 

Stonyng's case, use of torture in, 505 
Strappado, torture of, 407, 455 

Strasbourg, heretics of, 261 

Style on compurgation, 79 

Styria, duel limited in, ISV 

Suabia, accusatorial conjurators in, 90 
Suabian Law — see Schwnben ,spii-gel. 
Suabian Feudal Law, ordeal in, 337 

Subico of Speyer undergoes Euchar- 
ist ordeal, 308 
Submergence, amount of, in cold 

water ordeal, 280 

Substitutes ia ordeal, 346 

for torture system, 515 

Succession, law of, decided by duel, 119 
Sudebtnick allows champions, 173 

use of torture in, 451 

Sudras, cold water ordeal for, 281 

poison ordeals confined to, 328 

Suidger of Munster, his power of ex- 
orcism, 266 
Suits, speculation in, 17 
Superstitiv>n, perpetuity of, 369 
Surlet, Gilles, case of, 447 
Suspicion of guilt purged by ordeal, 337 
punishment for, 4.J8 
Swaddling-cloth of Christ, 278 
Swantopluck of Bohemia, use of tor- 
ture by, 417 
Sweden, compurgation and jury 

trial, 46 

compurgation used in 17th cen- 
tury, 77 
accusatorial conjurators, 89 
red-hot iron ordeal, 253, 262 
paternity decided by ordeal, 259 
prelates subjected to ordeal, .358 
fees for ordeals, 361 
orde.il prohibited, 365 
torture not used, 499 
SAvithin, iSt., intercession by, 3S0n. 
Switzerland, disuse of torture in, 51 6 
recent case of torture, 522 
Sylvester II., ordeal condemned by, 

343, 355 
Synagogue, sanctity of oath in, 26 



'rACITUS makes no 
1 Tacitus (Emp.) j 



mentionof duel, 103 



torture of slaves, 385 

Tahiti, divination in, 224 
Tai-ki, or Supreme Power, in China, 219 
Talio (the) — see Lex tnlioni.s. 

Tangena nut, ordeal of, 224 

Tanner on witch trials, 490 

Taoism, tendencies of, 220 

Tarbes, church fees for ordeal, 360 

Tassilo, ordeal alluded to by, 240 

Teeth, loss of, in duel, 132 

Templars offer the iron ordeal, 263 

torture used in their trials, 427 

Temple, the, oath taken in, 26 
Territorial privileges in declining 

duel, 1.30 

TffitimonU., 4S 

Testimony made known to accused, 415 



INDEX, 



549 



Testimony — 

Avithheld from accused, 453 

absence of, requisite for ordeal, 335 
Teutlberga, CHse of, 247 

Teutonic Kuights introduce the or- 
deal, 366 
Texas, recent case of torture in, 522 
Thanes required as compurgators, 44 
Thangbrand, the apostle of Iceland, 

176?i. 
Theodore, Penetential of, 28 

Theodore Lascaiis orders iron or- 
deal, 263 
Theodoric seeks to repress the duel, 106 
torture in Edict of, 398 
Theodosius the Great exempts priests 

from torture, 380 

Thomas Aquinas on the ordeal, 184 

Thomas of Gloucester, his rules for 

the duel, 152 

Thomas, Christian, opposes torture, 513 
Thornton aud Ashford, case of, 215 

Thrace, ordeal in, 350 

Thariugians, iron ordeal among, 256 
Tiberius, his delight in torture, 376 

eludes restriction as to slave tor- 
ture, 384 
Tibet, ordeal in, 236 
Tickling of soles, torture of, iSSn. 
Tiers-Etat, its influence iu abolish- 
ing duel, 177 
Tiht-byxig man, ordeals for, 340 
Tison, Marie, case of in 1788, 520 
Tithes, case of, determined by ordeal, 356 
Toads as evidence justifying torture, 467 
Toe-relic of King Pyrrhus, 277 
Toledo, 13th Council of, on torture, 403 
Tooth-relic of Buddha tested bv fife, 277 
Torture, ' 371 
cold water ordeal a preparation 

for, 288, 290 

aud ordeal are mutual substi- 
tutes, 371 
ordeal supplanted by, 343 
ordeal regarded as, 343 
Toulouse, duel forbidden at, 197 
officials exempt from torture, 436 
Tournay, customs of, oOn. 
duel restricted in, 179 
ordeals as punishment in, 340 
Tours, Council of, in 923, prescribes 

the ordeal, 356 

Tout Lieu de St. Disier, 438 

Towns, champions of, 174 

Townships, responsibility of, 39n. 

Trade, its influence adverse to duel, 180 
Trajan protects masters against evi- 
dence of slaves, 3S5 
Tralles, laws of, 15 
Transylvania, cold water ordeal in 

18th century, 293 

Travaucore, ordeals iu, 250 

Treachery a prerequisite for the 

duel, 188 

of champions, provision against, 164 

Treason, duel requisite in cases of, 132 

legalizes torture in Rome, 380 

no limitation on torture in trials 

for, in Spain, 409 

toi'ture in, iu Germany, 446 

in Corsica, 447 



Treason — 

torture of witnesses in cases of, 470 
toiture in England for, 505 

ceases in 1610, 506 

torture as punishment for, 417 

Trent, Bishop of, tried by compurga- 
tion, 57 
Trent, Council of, prohibits duel, 209 
Tresteaux, grand et petit, 444 
Treves, Council of, in 1227, pi-ohibits 

ordeal of hot iron, 363n. 

Tribur, Council of, in 895, prescribes 

the ordeal, 356 

on iron ordeal, 257«. 

enjoins Eucharist ordeal, 307 
ordeal for failure in compur- 
gation, 339 
Trinity proved by miracle, 331 
Triple" ordeals, 244 
Triumviri capitales as official tor- 
turers, 386 
Truth, symbols of, iu Egyptian courts, 372 
Trvx iam, 253 
Tucca the Vestal, case of, 238 
Tuers, Nicholas, case of, 322 
Turgau, story of priest of, 304 
Turks, divination among, 232 
refuse to try the fire ordeal, 272 
Tuscany, use of torture iu, 425 
abolition of torture in 1786, 522 
Twflfhe.ndeman, 44w. 
Twins count as one man in Wales, 158 
Twyhindufi , iin. 
Tylor, E. B., on ordeals in Borneo, 224 
on Bible ordeal, 296 
on ordeal of Bible and key, 315 
Tyndareus, oath exacted by, 25 



TTEBERLINGEN, Jews convicted 
U by bier-right, 317 

Ugo of Tuscany, case of, 333 

Ulpian asserts exemptions from tor- 
ture, -379 
on evidence under torture, 388 
Ulagenie Zakonof, torture in, 450 
Ulric of Cosheim, case of, 123 
Unchastity, punishment of, 305 
United States, wager of law in, 80 
appeal of death in, ■ 216 
bier-right in, 322 
divining rod in, 370 
use of shower-bath in, 450%. 
recent case of torture, 522 
Untersuchungschaft, or Inquisitorial 

process, 518 

Upstallesboom, laws of, absence of 

ordeal in, 365 

absence of torture in, 499 

Upton prescribes equality between 

combatants, 158 

on the duel in 15th century, 204 

Urim and Thummim, 228 

Urpheda, 487 

Usury, questions as to torture in, 476 
Uta, compurgation of, 37 

Utrecht, disuse of torture iu, 513 

VAISYAS, cold water ordeal for, 281 
Valence, Council of, iu 855, 22 



S50 



INDEX. 



Valence, Council of— 

condemns the duel, 183 

in 1248, refuses counsel 
to accused, 428?i. 

Valenciennes, privilege of duel in, 205 
fees for torturing in, 485 

urges abolition of torture, ,')20 

Valeatinian I., exemptions from tor- 
ture by, 380 
Valeutinian II., requires inscription 

for slaves, 387 

Valerius Maximus on torture, 389 

Valtelliue, use of torture in, 448 

Value of extorted confession, 485, 487 
Van Arckel, judicial duel of, 9t) 

Vannes, Council of, condemns tlie 

lot, 313%. 

Vai- niravg, or Pehlvi ordeal, 233 

Varieties of ordeal, 243 

of torture in Greece, .375 

in Rome, 3^0 

in Spain, 407, 409 

in France, 453, 455 

in Germany, 483 r?. 

in England, 505 

in Scotland, 609 

Vase of Soissoiis. story of, 3^1 

Vatsa, Rishi, undergoes the ordeal, 234 

Vehmgericht, accusatorial conju- 

rators in, 91 

Vengeance, private, legalized, 13, 16 
Venice, compurgation in, 52 

use of torture in, 448 

nobles not exempt, 465w. 

Vermandois, appeals in, 115 

nobles of, demand the duel, 200 

charter of 1315, 436 

Verona. Council of, 122 

duel at discretion of podesta, 133 
institution of champions, 168 

equalization of champions, 173 

ordeal of cross in, 297 

use of torture in, 423 

Vestals, not required to take oaths, 34??. 
ordeals used by, 237 

Vexilbim crtiris-, 29,9n. 

Vezelai, heretics condemned by or- 
deal, 357 
Vidame, 175 
Vienna exempted from duel, 181 
case of bier-right in, 321 
Viescher, his Treatise on the Duel, 91»-. 
Viga-Olum's oath, 26 
Vigils of Florence, torture of, 483 
severity of, in England, 507 
in Scotland, 5()s 
in Spain, 489 
Villadiego condemns compurgation, Sin. 
on torture, 408 
Villein not allowed to challenge 

judge, 115 

regulations concerning duel, 136 

no rights accorded to, 431 

Villeneuve, consuls of, exempt from 

torture, HO 

Villon, torture of, 453ri. 

Vincent, St., martyrdom of, 391 

Virgin, the, image of, at Cardigan, 31) 
interposes to convict a Jew, 184 

her interposition to save, 368 

Virginia, bier-right in, 320, 323 



VUhanaga, poison us'^d in ordeals, 328 
Vives, Juan. Luis, deoounces tor- 
ture, 511 
Vladislas II. restricts duel in Hun- 
gary, 208 
Voltaire denounces use of torture, 519 
Volterra, church of, jurisdiction of 

duel, 145 

Vomere,9 igniti, 252 

Vnrnge.ia or Russian sorceress, 291 

Vuillermoz, Guillaume, case of, 492 



WAGEXSEILontheSota, 229?i. 

Wager of Law, 13 

Wager of Battle, 93 

Waldemar II., Constitutions of, 39 

stncknpffn, 46 

ordeal prohibited, 31)5 

torture not alluded to, 498 
Wales, laws of — 

compensation for injuries, 17 
legislation as to fines, 19 
punishment of kinswoman, 19 
responsibility of clerks, 20 
purgatorial oaths, 23 
multiple oaths, 27 
relics lequired iu litigation, 29 
veneration for relics, 31w. 
the raith, or compurgation, .36, 38 
number of compurgators re- 
quired, 38, 41 
selection of compurgators, 42 
raith sets aside evidence, 51 
Jurn.rnnntum .itipermo tuuw, 52 
forms of compurgatoiial oath, 55 
raiths taken iu churches, 55 
duel originally not used, 101 
questions of rank in duel, 138 
twins cjunt as one combatant, 158 
strangers as champions, 165 
relics not required for confession 
at gallows, oOOn. 
Welsh and Saxons, ordeals between, 242 
War, duels forbidden during, 196, 199 
Warrantor lia.))le to duel, 112 
Water of jeilousy, 229 
Water, boiling, ordeal of, 244 
used in Japan, 221 
in Rajmahal, 226 
in Mazdeism, 232 
in Tibet, 233 
among Fe:ni, 39 
among Goths, 241 
among Norsemen, 335 
severity of, 3l3w.. 
Water, cold, ordeal of, 279 
use of, as torture, 450 
Watei'-torture, process of, 453 
Wax, divination by, 232 
Wealrefif, 4in. 
Weapons of witnesses blessed. 111 
choice of, iu duel, 156 
Weichbild — see SachftisrJie W. 
Wolf of Altorf subjected to ordeal, 284 
Welf of Bavaria, 123 
Wells, poisoning, cases of, 445 
Weuceslas of Boliemia reforms 

cruelty of courts, 415 

We.r-gHff, or blood-money, 14 

Wer--;ild, nature of, J 7 



INDEX 



551 



Wer-gild — 

traces of, in Greece and Eome, 15 

in Rnssia, 15 

in Poland, 16 

of ecclesiastics, 20 

Moslem, or Di4, 27n. 

connected with compurgation, 36 

oath rated according to, 44 

Werner, J. F., defends use of torture, 514 

Westbury, Monastery of, 37 

Westphalia, accusatorial conjura- 

tors in, 89 

cold Avater ordeal in, 2SS, 289 

West-1'russia, witch-trials in ISili 

century, 293 

Whipping, torture in cases involv- 
ing, ^ 477 
Widow not liable to dnel, 133 
Wier on cold water ordeal, 287 
Wife, torture of, in husband's pres- 
ence, 473 
William Clito, his privileges to mer- 
chants, ISO 
William the Conqueror introduces 

judicial duel in England, 108 

William of Ely, compurgation of, 65 

William of Holland, his oath of 

knighthood, 165n. 

William of Utrecht perishes by the 

Eucharist, 310 

AVilson, Christian, convicted by 

bier-right, 319n. 

Winterbottom, Dr., ou African or- 
deals, 222 
Wirtemburg, torture used till 1836, 517 
Wisigoths, their civilization, 398 
their Romanizing tendencies, 107 
value of oaths, 21 
evidence of kinsmen rejected, 36?^. 
duel abandoned, 107 
duel revived, 108 
regulations of torture, 399 
Witch-bridle, 508 
Witchcraft, tests of, 333 
unconscious, 490 
Witch-Pool of St. Andrews, 292 
prickers, 507 
Witches, loss of weight by, 287, 295 
aid of Satan for, 2b'4, 2>S, 289, 293, 492 
insensibility to torture, 493 
extent of persecution, 496 
burned in 1722 in Scotland, 511 
Witch-trials, ordeals not to be used in, 1 87 
iron ordeal in, 256, 264, 355 
cold water ordeal in, 286 
falls into desuetude, 287 
revived in 16th centnry, 288 
influence of, on torture, 490 
in England, 506 
in Scotland, 508 
torture used in Rome, 380 
among the Franks, 411 
in Russia, 450 
confession is not evidence, 4fi2 
evidence to justify tortrrre, 167 
detection by greased boots, 468 
retraction of confession, 485 
imprisonment to extort confes- 
sion, 488 
use of torture in, 490 
difficulty in proving guilt, 491 



Witch-trials — 

deceit to procure confession, 495 

use of pricking, 507 

severity of, in England, 506 

in Scotland, 508, 510 

Witikind and Charlemagne, duel be- 
tween, 121 
Witnesses, kinsmen as, 36 
compared with conjurators, 57 
of defeated pleader fined, 10971. 149 
liability of, to duel. 111 
come armed to court, 111 
their weapons blessed. 111 
must be able to bear arms, 113 
as champions, 161 
penalty when defeated, 163 
restricted in employing cham- 
pions, 172 
women admitted as, 201 
ordeal of cross for, 297 
to be present at ordeal, 3 )3 
slave, torture of, in Greece, 375 
torture of, in Rome, 382 
priests exempted, 380 
not tortured among Barbarians, 395 
except among Wisigoths, 401 
tortured in Spain, 406 
in Germany, 470 
in bankruptcy cases, 477to. 
confrontation of, 456 
confirmation of evidence by, 487 
Witzendorff, case of, 264 
Women received as conjurators, 43 
not received as witnesses, 112 
their evidence admitted, 201 
entitled to duel in Germany, 139 
ordeal as a substitute for dnel, 140». 
punishment of, when defeated in 

duel, 152 

habitual cruelty to, in Middle 

Ages, 154, 4i4w. 

boiling water ordeal for, 257 

tortured for poisoning, SSO 

pregnant, exempt from torture, 

3«7, 405, 408, 463, 472 
except in Iceland, 497 

Worms, exemption from duel in, 182 

Worms, Council of, in 829, con- 
demns cold water ordeal, 283 
enjoins Eucharist ordeal, 307 
Wurzburg, Council of, in 1298, pro- 
hibits ordeal, 366 
Wurzbui'g, Diet of, case of Henry 
the Lion in, 124 



\''AHVEH, appeals to judgment of, 228 
Yajnavalkya, code of, ordeal in, 

2357i., 246 
red-hot iron ordeal, 251 

cold water ordeal, 281 

ordeal of balance, 294 

poison ordeal, 327 

conditions of ordeal, 334 

ordeals as punishments, 

339, 314 

Yaroslav Vladomirovich, laws of, 15 

Yazatas, or Mazdean angels, 232 

Ypres, compurgation in, 45 

duel abolished in, 178 

torture not used in, 438 



552 



INDEX. 



ZABOLCS, Council of, in 1092, regu- 
lates fees for ordeal, 360n. 
Zadriiga, or Slav communal society, 16 
Zala, monastery of, its privileges, 142 
Zanger on exculpatory oaths, 28 
on bier-right, 821 
his treatise on torture, 464w. 
Zends, ordeals among, 232 
Zerbst, efficacious torture iu, 614 



Zerubbabel defeated in fire ordeal, 276 
Zierkin von Tola, case of, lo3 

Zoroaster, legend of, 233 

uses ordeal to convert Gush- 
tashp, 260 

Zoroastriaa Law, tortare not used 

in, 373 

Zug, recent use of torture, 522 



By the same Author, 



STUDIES IN CHURCH HISTORY: 

THE RISE OF THE TEMPORAL POWER— BENEFIT OF CLERGY- 
EXCOMMUNICATION. 

In one large royal 12mo. volume of 516 pages; extra cloth, $2 76. 

The story was never told more calmly or with greater learning or wiser 
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Mr. Lea's latest work. "Sludies in Church History," fully sustains the 
promise of the first. It deals with three subjects — the Temporal Power, 
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of such works as these— with which that on " Siicerdotal Celibacy" should 
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of the first American bouses is also the writer of some of its most original 
books. — London Athenaum, Jan. 7, 1871. 

His books, therefore, have it for the prime element of their value that 
they contain authentic history, drawn directly from its sources. The au- 
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In fine, these essays are models in their kind — the simple orderly presenta- 
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subjects — each a complete and exhaustive monograph, containing, with 
ample means of verification in references and extracts, all that the reader 
needs to place himself at the point of view which the author has attained by 
the most painstaking and elaborate research. — North American Review, 
July, 1870. 



Preparing. 

SUPERNATURALISM; ARYAN AND SEMITIC. 

WITH SPECIAL REFERENCE TO THE THEORY OF 
EVIL AND THE PRACTICE OF MAGIC. 



HENEY 0. LEA-PhiladelpMa. 



By the same Author. 



AN HISTORICAL SKETCH 

OF 

SACl'RDOTAL CELIBACY IN THE CHRISTIAN CHURCH. 

In one handsome octavo volume of 600 pages; extra cloth, $3 75. 

This subject has recently been treated with very great learning and with 
admirable impnrtiality by an American author, Mr. Henry C. Lea, in his 
History of iSace.rdotal Celibacy, which is certainly one of the most valuable 
works that America has produced. Since the great history of Dean Milcnan, 
I know no work in English which has thrown more light on the moral con- 
dition of the Middle Ages, and none which is more fitted to dispel the gross 
illusions concerning that period which Positive writers and writers of a 
certain ecclesiastical school have conspired to sustain. — Lecky''s History of 
European Morals, Chap. V. 

Very instructive — not the less so because impartial, uncontroversial, and 
free from all exaggeration, on a subject which is naturally not unprovocative 
of it. It has the proper qualities of a history. — Westminster Review, Oct. 
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Thus his chapter on the Anglican church is perhaps the most connected 
and most satisfactory account of our own Reformation as to the question of 
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J. B. LIPPINCOTT & CO.— Philadelphia. 



